2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-27-2009

Holman v. York

Precedential or Non-Precedential: Precedential

Docket No. 07-4438

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4438

 (Consolidated with Nos. 07-4437 and 07-4439)

_____________

JOHN R. HOLMAN,

 Appellant

v.

CITY OF YORK, PENNSYLVANIA;

POLICE COMMISSIONER MARK L. WHITMAN, 

in his official capacity;

OFFICER KOLTANOVICH, York Police Department,

in his official and individual capacities

_________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 06-CV-02300)

District Judge: Honorable John E. Jones, III

__________

Argued October 23, 2008
2

Before: RENDELL, and SMITH, Circuit Judges,

and POLLAK,* District Judge.

(Filed: April 27 2009)

 

Dennis E. Boyle, Esq.

Suite 200

4660 Trindle Road

Camp Hill, PA 17011-0000

Randall L. Wenger, Esq. [ARGUED]

Suite 200

4660 Trindle Road

Camp hill, PA 17011

Counsel for Appellants

 John McTernan; John R. Holman; Edward D. Snell

Donald B. Hoyt, Esq.

Blakey, Yost, Bupp & Rausch

17 East Market Street

York, PA 17401-0000

__________________

 *Honorable Louis H. Pollak, Senior Judge of the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.
 The caption in the case filed in the District Court identifies 1

the Defendant as “Officer Koltanovich.” The correct spelling of

Defendant’s surname is “Koltunovich,” as reflected in his

Unsworn Declaration. H.A. 294-97.

3

James D. Young, Esq. [ARGUED]

Lavery, Faherty, Young & Patterson

225 Market Street, Suite 304

P. O. Box 1245

Harrisburg, PA 17108-0000

 Counsel for Appellees

 City of York, Pennsylvania; 

 Police Commissioner Mark L. Whitman, in His Official

Capacity; and Officer Koltanovich

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.

Appellant John Holman appeals from the District Court’s

grant of summary judgment and dismissal of his Monell claims

for municipal liability in this action pursuant to 42 U.S.C.

§ 1983. Appellant John Holman is a pro-life advocate who

regularly speaks to pregnant women as they enter the medical

clinic (hereinafter “Clinic”) of Planned Parenthood of Central

Pennsylvania (“Planned Parenthood”) in York, Pennsylvania.

Officer Koltunovich, a member of the City of York police 1
4

department, is one of several officers assigned to overtime detail

at the Clinic under a contract between Planned Parenthood and

the City. McTernan Appendix (“M.A.”) 182. To dissuade

pregnant women from undergoing an abortion, Holman

emphasizes the sanctity of the fetus, distributes pro-life

literature, and discusses alternatives to, and the health risks of,

abortion. Holman Appendix (“H.A.”) 356-57. Holman’s

activities emanate from deeply rooted Christian religious beliefs.

H.A. 355.

This case and those of two other protesters at the Clinic

(McTernan v. City of York, No. 07-4437; and Snell v. City of

York, No. 07-4439) were consolidated for oral argument. Each

of the three appellants sued individually complaining of

restrictions on his First Amendment rights of speech, assembly,

and religious expression. Additionally, Holman and Snell

complain that their arrests for activity outside the Clinic violated

their Fourth Amendment rights. While certain facts as stated in

the three appeals are similar, the claims of each were separately

asserted in, and decided by, the District Court. We therefore

write separately on each case, and we note that the analysis as it

relates to Holman differs from the others somewhat, based on

the nature of the government conduct at issue.

The Clinic and its environs are described fully in our

Opinion in McTernan v. City of York, No. 07-4437, filed

concurrently herewith, and that description will not be repeated
 The basis of our jurisdiction, and the standard of review 2

applicable to the Court’s grant of summary judgment and

dismissal of certain counts of the complaint, are set forth in

McTernan v. City of York, No. 07-4437, which we expressly

incorporate herein. 

 These facts, derived from Holman’s deposition testimony 3

and sworn affidavit, are uncontested unless indicated to the

contrary.

 The appendix reference at page 362, a DVD proffered by 4

Holman, depicts his conversation with Officer Koltunovich. 

5

here.2

On December 7, 2005, Officer Koltunovich was working

at the Clinic. That morning, as Holman was walking through

Rose Alley towards South Beaver Street, Officer Koltunovich

approached, positioning himself “toe to toe” with Holman. H.A.

193, 358. Officer Koltunovich then ordered Holman to “get out 3

of my space” and “verbally assault[ed]” him. H.A. 358, 193.

Officer Koltunovich returned to the intersection of Rose Alley

and South Beaver Street, after which Holman continued to

advocate in the alley, without any objection by Officer

Koltunovich. H.A. 190, 358, 362. At some point on the 4

morning of December 7, 2005, Officer Koltunovich cautioned

Holman that walking in Rose Alley could be hazardous. H.A.

200, 278. However, Holman testified that Officer Koltunovich

did not forbid his standing in the alley on that day or at any time

previously, H.A. 188-89, nor is there evidence that Officer
 The Commonwealth amended the charge from a summary 5

offense to a misdemeanor. Justice Haskell dismissed the charge

without explicitly stating his reason for doing so. His comments

at the hearing suggest either of two possibilities: the

prosecutor’s failure to meet the prima facie elements of the

offense, H.A. 289, or the applicability of an affirmative defense.

H.A. 288.

6

Koltunovich instructed other protesters to stay out of Rose Alley

on that day. Snell Appendix (S.A.) 175.

Shortly thereafter, the two conversed again, this time near

the intersection of Rose Alley and South Beaver Street. Holman

was standing at the edge of the street near the Clinic’s front lot,

when a tractor-trailer made a “wide, sweeping turn” into the

alley from South Beaver Street. H.A. 283, 358, 361. To avoid

the truck, Holman stepped into the Planned Parenthood parking

lot; Officer Koltunovich immediately arrested him for trespass.

H.A. 239, 290. The charge for defiant trespass was dismissed

by the Magisterial District Judge. H.A. 229. 5

Officer Koltunovich had previously warned Holman that

Planned Parenthood prohibited his entering the front lot, which

was its private property. H.A. 166-67, 173, 267-69, 296.

Holman acknowledged that he was aware that he was entering

Planned Parenthood property when he stepped onto the elevated

curb to avoid the truck. H.A. 239, 267-270, 272.

Holman and Officer Koltunovich offered conflicting
 Holman references his claim of right to assembly but does 6

not set forth a separate argument in his brief. For purposes of

our analysis, we conclude that this claim is encompassed in his

free speech claim.

 The District Court granted summary judgment in favor of 7

Officer Koltunovich on all of Holman’s First Amendment

claims.

7

testimony as to the speed of the truck, the imminence of the

danger presented, and Holman’s alternatives to avoid a collision.

Holman testified that the truck was traveling at an unsafe speed,

and maintains that stepping briefly onto Planned Parenthood

property was his sole alternative to avoid a collision. Appellant’s

Br. at 32; H.A. 198. Officer Koltunovich, conversely, testified

that the truck, which came to “practically a dead stop,” did not

pose an “imminent danger” or present a “close call.” H.A.

239-40, 279. Officer Koltunovich also testified that Holman

could have avoided a collision by walking farther down the

alley, which was clear of traffic. H.A. 274-75, 277.

As with McTernan and Snell, Holman asserts First

Amendment claims of free speech, assembly, and religious 6

expression. Unlike McTernan and Snell, however, Holman 7

fails to demonstrate any restriction on his First Amendment

rights. Holman acknowledges that he was granted unfettered

access to the alley, and that he exercised his First Amendment
 Finding that Officer Koltunovich prohibited Holman from 8

lingering in Rose Alley, the District Court analyzed the

constitutionality of such a restriction; we need not do so, as we

conclude that Holman’s use of the alley was not meaningfully

curtailed.

 See, e.g., Tanner v. Heise, 879 F.2d 572, 580 n.5 (9th Cir.

9

1989) (holding that an arrest motivated by desire to suppress

religiously-motivated expression violates the First Amendment,

regardless of the procedural propriety of the arrest); Bailey v.

Andrews, 811 F.2d 366, 372 (7th Cir. 1987) (noting that arrest

motivated by desire to suppress a suspect’s speech is

unconstitutional, notwithstanding the existence of probable

cause for the arrest).

 Holman acknowledges that, undaunted by Officer 10

Koltunovich’s “verbal assault,” he continued to advocate in the

alley. Appellant’s Br. at 10.

8

rights there, without objection by Officer Koltunovich. To the 8

extent that Holman does assert a restriction on his free speech

rights, it is based on his arrest for trespass. McTernan contends

that his arrest was motivated by a desire to suppress his pro-life

views, and chilled his First Amendment activity in the alley.9

We disagree. Although we are somewhat troubled by Holman’s

arrest for a de minimis offense, no evidence suggests that

Officer Koltunovich acted based on an improper motive, or that

the arrest would “deter a person of ordinary firmness from the

exercise of his First Amendment rights.” See Suppan v.

10

Dadonna, 203 F.3d 228, 235 (3d Cir. 2000); Bennett v. Hendrix,
9

423 F.3d 1247, 1254 (11th Cir. 2005). To the contrary, Officer

Koltunovich granted Holman unfettered access to the alley,

permitting him to protest there without objection. Holman was

only arrested when he trespassed on Planned Parenthood

property, after repeated warnings that the lot was private

property. Hence, Holman’s “chill” argument – that he

reasonably feared police reprisal for exercising his First

Amendment rights – is unfounded. Holman had no reason to

fear police interference with his advocacy in the alley, provided

he respected Planned Parenthood’s property rights. Thus,

Holman fails to demonstrate a cognizable First Amendment

violation.

Holman also challenges his arrest on Fourth Amendment

grounds. He contends that his arrest for trespass was not

supported by probable cause, because an affirmative defense –

the defense of necessity – clearly applied. Specifically, Holman

contends that stepping onto the private parking lot was

necessary to avoid colliding with a truck that had just turned into

the alley. He asserts that “the trespass statute is not applicable

when there exists the defense of necessity to prevent

Mr. Holman’s own bodily injury.” Appellant’s Br. at 24; see

18 Pa.C.S. § 503(a).

Trespass under 18 Pa.C.S. § 3503(b)(1)(i) requires proof

that the defendant, “knowing that he is not licensed or privileged

to do so, . . . enters or remains in any place as to which notice

against trespass is given by . . . actual communication to the

actor.” The District Court concluded that Holman’s arrest was

lawful for three reasons.
10

First, the District Court noted that Holman all but conceded that

Officer Koltunovich had a reasonable basis for concluding that

the elements of the charged offense were met. The Court

reasoned that Officer Koltunovich had previously advised

Holman that the front parking lot was private property owned or

leased by Planned Parenthood, and that Planned Parenthood did

not want Holman trespassing there. Further, Holman admitted

that, based on these instructions and his approximately a dozen

trips to the facility, he knew which locations were private

property and which locations were public, and was aware that

the elevated curb onto which he stepped was private property.

H.A. 31, 166-67, 239, 267-270, 272.

Second, citing Sands v. McKormick, 502 F.3d 263, 269

(3d Cir. 2007), the District Court held that, as a matter of law,

probable cause exists when an officer reasonably believes that

the elements of the charged offense have been met, regardless

of whether an affirmative defense appears to apply: “First,

justification or necessity is an affirmative defense. In making

the ‘fundamentally . . . factual analysis . . . at the scene,’ such

affirmative legal defenses are not a relevant consideration in an

officer’s determination of probable cause.” H.A. 32. Thus, the

District Court reasoned that Officer Koltunovich had probable

cause to arrest Holman, independent of affirmative defenses that

Officer Koltunovich knew, or should have known, exonerated

Holman.

Third, the District Court found that, even assuming,

arguendo, that an arresting officer must consider the

applicability of affirmative defenses in determining whether

probable cause exists, the necessity defense likely did not apply.
11

Indeed, Holman, previously apprised of the danger posed by

vehicular traffic, could have anticipated that trespassing on

Planned Parenthood property would be necessary to avoid

vehicles traveling through the alley. Further, it was not

necessary for Holman to protest in the alley because numerous,

safer locations existed from which to convey his pro-life views.

The District Court analogized the case before it to Northeast

Women’s Ctr. v. McMonagle, 868 F.2d 1342, 1352 (3d Cir.

1989), where we determined that protesters trespassing at an

abortion clinic were not entitled to a necessity defense, because

the protesters possessed lawful alternatives, other than

trespassing on clinic property, to prevent the harm

identified—the performance of abortions. We reasoned that

protesters could have voiced their pro-life views equally

effectively from the public sidewalks around the clinic. Id.

Here, the District Court observed, similarly, that Holman could

have safely exercised his First Amendment rights on the public

sidewalks around the Clinic, thereby avoiding the hazards of the

alley. 

Although Holman concedes that all elements of a prima

facie case for trespass were met, he articulates two objections to

the District Court’s determination of probable cause. First,

Holman argues that Sands did not make all affirmative defenses

irrelevant to the probable cause determination. Rather, Sands

merely relieved officers of the obligation to inquire about the

single affirmative defense at issue there—the statute of

limitations. We emphasized in Sands that police officers, who

lack legal training, could not reasonably be expected to calculate

the applicable tolling period. Holman argues that trespass is

different, because no legal training is required for police to
12

determine whether a defendant’s trespass is justified by

necessity. Unlike the statute of limitations, the necessity

defense has straightforward elements, and an officer’s

immediate observations are often sufficient to determine

whether its requirements are met. Thus, he urges, neither the

holding nor the reasoning of Sands categorically relieves an

arresting officer of the duty to determine whether an affirmative

defense applies to the defendant’s conduct. 

Second, Holman distinguishes McMonagle from the case

before us. Unlike the defendants in McMonagle, who could

protest abortions without trespassing on clinic property, Holman

lacked lawful alternatives to avoid the specific harm that he

confronted—being struck by an approaching truck. He contends

that stepping onto the Planned Parenthood parking lot was his

sole option to avoid an accident.

We cannot conduct an informed inquiry into this issue

without noting that, in another case, Radich v. Goode, 886 F.2d

1391, 1396 (3d Cir. 1989) (not cited by the parties), we assumed

for the sake of argument, without deciding, that the existence of

an affirmative defense was relevant to the determination of

probable cause. There, we considered whether probable cause

existed to arrest a defendant for defiant trespass, where the

defendant pled, as an affirmative defense, that (1) the premises

were open to the public, and (2) the condition imposed by the

property owners was unlawful. 18 Pa. C.S. § 3503. Rather than

holding that the proffered defense was irrelevant to the officer’s

determination of probable cause as a matter of law, we assumed

arguendo that the applicability of the defense bore on the

probable cause determination. Radich, 886 F.2d at 1396. We
13

then framed the dispositive inquiry as whether an officer,

“acting reasonably . . . under the facts and circumstances”

known to him, would conclude that the affirmative defense

applied. Id. at 1396-97. If the answer was yes, then probable

cause did not exist. There, because the defendant could not

prove that a reasonable officer, based on the facts before him,

would believe that the condition imposed by the property owners

was unlawful, the defendant’s arrest was supported by probable

cause. Id. at 1398.

However, Radich is distinguishable, because the two

affirmative defenses urged by the defendant were specifically

included in the statute setting forth the elements of the crime.

That is, the statute specifically stated that the proscribed conduct

was not criminal if these two aspects were present. Here, that is

not the case. The “necessity” defense urged here appears in a

separate section of the Pennsylvania criminal code, § 503,

defining the general principles of justification. Significantly, §

503 is not explicitly referenced in § 3503(b)(1), which details

the elements of defiant trespass.

In Sands, we concluded that the affirmative defense of

the statute of limitations need not be considered by an arresting

officer in determining probable cause. We suggested that it was

a “faulty premise” to urge that affirmative defenses, such as the

statute of limitations, are necessarily relevant at the time a police

officer files charges. 502 F.3d at 269. Rather, we indicated that

generally “affirmative defenses are to be ruled upon by a court

of competent jurisdiction.” Id. We bolstered our reasoning in

Sands by noting that statute of limitations is not a “clear cut”

matter in a criminal prosecution. Id. Here, similarly, whether
We also reject Holman’s alternative argument – that Officer 11

Koltunovich used excessive force. Holman contends, “When an

arrest is illegal to begin with, any force used is excessive.”

14

Holman’s movement in a certain direction, and onto private

property, was “necessary” is not clear cut and is essentially an

issue of fact. Indeed, whereas Holman contends that the truck

was approaching at an “unsafe” speed, forcing him to step onto

the Planned Parenthood parking lot to avoid a collision, H.A.

198, 229, 278, Officer Koltunovich maintains that the truck was

“practically at a dead-stop,” and that Holman could have

avoided an accident by simply walking farther down the alley.

H.A. 239-40, 274-75, 278. Requiring Officer Koltunovich to

resolve these questions, and painstakingly to weigh possible

defenses, would be impractical, particularly given the rapidity

with which the events transpired here.

Just as the statute of limitations in Sands requires an

analysis of legal considerations that should not concern an

arresting officer, the “necessity” defense urged here requires an

officer to resolve equally daunting issues. An arresting officer

would need to examine countless factual permutations to

determine the “necessity” of specific conduct at a given moment

in time. We do not endorse the District Court’s statement that

affirmative defenses are “not a relevant consideration” – as we

have never so held – but we do conclude that, here, the defense

of necessity need not have been considered in the assessment of

probable cause for arrest for trespass at the scene. Because

Officer Koltunovich had probable cause to arrest Holman for

trespass, his Fourth Amendment claim fails.11
Appellant’s Br. at 32. Holman’s excessive force claim hinges,

therefore, on the legality of the initial arrest. Because we

conclude that Officer Koltunovich had probable cause to arrest

Holman for trespass, we reject his derivative claim for excessive

force.

 Holman’s municipal liability claims would have inevitably 12

failed at the summary judgment stage, since we conclude that no

constitutional deprivation occurred.

15

Finding no violation of Holman’s First and Fourth

Amendment rights, we will AFFIRM the grant of summary

judgment. Also, for the reasons set forth in McTernan v. City of

York, No. 07-4437, which we expressly incorporate herein, we

will AFFIRM the District Court’s order dismissing Holman’s

municipal liability claims against the City of York and his

official capacity claims against Officer Koltunovich, Mayor

Brenner, and Police Commissioner Whitman, as the allegations

in Holman’s complaint mirror those in McTernan’s.12