2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2004

Blackhawk v. Comm PA

Precedential or Non-Precedential: Precedential

Docket No. 02-3947

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"Blackhawk v. Comm PA" (2004). 2004 Decisions. Paper 364.

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-3947/4158

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;

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

Argued: July 21, 2003

Before: ALITO and FUENTES, Circuit

Judges, and SURRICK,* District Judge.

(Opinion Filed: August 20, 2004 )

D. MICHAEL FISHER

HOWARD G. HOPKIRK (Argued)

CALVIN R. KOONS

JOHN G. KNORR, III

Office of Attorney General

Appellate Litigation Section

15th Floor, Strawberry Square

*

 The Hon. R. Barclay Surrick,

United States District Judge for the

Eastern District of Pennsylvania, sitting by

designation.
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Harrisburg, Pa. 17120

Counsel for Appellants/Cross-Appellees

GARY S. GILDIN (Argued)

150 South College Street

Carlisle, Pa. 17013

THOMAS B. SCHMIDT, III

PEPPER HAMILTON LLP

200 One Keystone Plaza

North Front and Market Streets

Post Office Box 1181

Harrisburg, Pa. 17108-1181

Counsel for Appellee/Cross-Appellant

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 Seneca

tribes, who schooled him in the 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 (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
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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 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 Pa. Cons. Stat. Ann. §

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 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 $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 to 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 465, 470

(M.D. Pa. 2002). The letter from Littwin
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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 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 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 Commission was

unable to “demonstrate a compelling

interest in refusing to grant a religious

exemption.” Id. at 477. The District Court

accordin gly enjoined the Game

Commission from charging Blackhawk a

permit fee. However, the 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
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that the First Amendment does not entitle

Blackhawk to a waiver, and Blackhawk

contends that the District 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 the 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 “all ‘governmental

regulation of religious beliefs as such.’”

494 U.S. at 877 (quoting Sherbert v.

Verner, 374 U.S. 398, 402 (1963))

(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., claimsinvolving “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 884. 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. . . .
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[O]ur decisions in

the unemployment

cases stand for the

p r oposition th a t

where the State has

in place a system of

ind ividua l

exemptions, it may

not refuse to extend

that system to cases

o f ‘relig i o u s

hardship’ without

compelling 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

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

“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 prohibition is of

general application,” id. at 543, the Court’s

discussion of the requirement is

instructive. The principal ordinances

challenged in Likumi were claimed 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 t hey wer e

“underinclusive for [their asserted] ends”

and “[t]he underinclusion [was]

substantial, not inconsequential.” Id. at

543. The Court explained that the

ordinances were “underinclusive” because

they “fail[ed] to prohibit nonreligious

conduct that endanger[ed] these interests

in a similar or greater degree than Santeria

sacrifice does.” Id. The Court added:

The ordinances “ha[ve]

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 (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

wearing 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
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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 than

religious 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 a

mechanism 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

indica tes that th e

Department has made a

value judgment that secular

(i.e., medical) motivations

for wearing a beard are

import a n t enough to

overcome its general interest

in 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 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 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 authorized

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 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 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. at 152. We

thus held that “the Borough’s selective,

discre tionary 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
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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

applicability requirement if it burdens a

category of religiously motivated conduct

but exempts or does not reach a substantial

category of conduct that 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 Police, 170

F.3d at 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 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 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. 

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. 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 “extraordinary

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

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
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sufficiently open-ended to bring the

regulation within the 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, th e

Commonwealth relies on the following

passage from the declaration of a Game

Commission official:

The Legislature ha s

d e legate d the Gam e

Commission th e

responsibility to “protect,

propagate, manage and

preserve the game or

w i ldli f e of thi s

Commonwealth.” 34 Pa.

C.S. § 321. The Game

Commissio n norm all y

considers the keeping of live

animals in captivity as being

inconsistent with sound

game an d wi l d lif e

management, or the overall

purpose of the Game Code.

This is because 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 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 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 religiously motivated. The

italicized phrases show that the Game

Commission’ s polic y does no t

categorically disfavor 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 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.
-10-

Moreover, under 34 Pa. Cons. Stat. Ann. §

2901(d), a person seeking a waiver need

not show that the waiver would be

“consistent with sound game or wildlife

management activities.” Instead, a person

seeking a waiver may show that it would

be “consistent with . . . the intent of [the

Game and Wildlife Code],” 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 entities such

as zoos and “nationally recognized

circuses.” See 34 Pa. Cons. Stat. Ann. §

2965(a)(1)-(3). These exemptions serve

the Commonw ealth’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, discretionary exemptions

that triggers strict scrutiny. 

The categorical exemptions in 34

Pa. Cons. Stat. Ann. § 2965(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 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) 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 captivity except where doing so

provides a “tangible” benefit for

Pennsylv a nia’s wildlife. Th e

Commonwealth has not explained how
-11-

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 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 tangible benefit for

Pennsylvania’s wild animals. 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 undercover 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 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 undermine 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 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 undermine 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 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
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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 contrast, we are

confronted with a scheme that features

both individualized and categorical secular

exemptions, and it is these that trigger

strict scrutiny. Moreover, because the

state statute permits individualized

exemptionsfor 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 C o m m onw ealth als o

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 that “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 provisions at issue 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 miliary

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 (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 then rejected

the taxpayer’s argument that 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

“reaso nable cause” or “unusua l

circumstances and unfairness.” See 26

U.S.C. § 6651(a) (no penalty for failure to

file if taxpayer demonstrates “reasonable

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
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“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 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 similar to that in

the unemployment compensation cases and

that “the failure to 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 Code 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 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 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 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 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 of those interests.”

Lukumi, 508 U.S. at 546 (internal

quotation marks omitted). In this case, the

Game Commission asserts that the fee

scheme serves two compelling interests:

(1) “promot[ing] the welfare and
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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]here government restricts only

conduct protected by the First Amendment

and fails to enact feasible measures to

restrict other conduct prod ucing

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 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 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 Commonwealth makes

waivers available for persons seeking to

keep animals 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 to further them. If the

Commonwealth wishes to reduce the

number of wild animals held in captivity

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 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 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
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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 allegations of

personal direction or of actual knowledge

and acquiescence’”) (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 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. 635, 641 (1987).

Qualified immunity “provides ample

protection to all but the plainly

incompetent or those who knowingly

violate the law.” 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 the waiver

procedure in 34 Pa. Cons. Stat. Ann. §

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 reasonable 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[ing] 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-applicability

requirement. See 170 F.3d at 365-66.

Thus, reading Adams in light of Fraternal
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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 crossappeal, we affirm the judgment of the

District Court in all respects.