2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-22-2008

Egolf v. Witmer

Precedential or Non-Precedential: Precedential

Docket No. 06-2193

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"Egolf v. Witmer" (2008). 2008 Decisions. Paper 1089.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 06-2193

___________

TRISTAN P. EGOLF; ADAM CLAYTON WILLARD;

JONATHAN A. KOHLER; DAVID JC OBRYANT;

BENJAMIN D. KEELY; PAULA EGOLF; 

GARY LEE EGOLF,

 Appellants

v.

CHRISTOPHER WITMER; JAMES ELY; DEB KOLB;

GERALD KLING; D.J. KLING, IN THEIR INDIVIDUAL

CAPACITIES AS POLICE OFFICERS FOR EAST

LAMPETER TOWNSHIP; LINDA GEROW; BLAINE

HERTZOG; WAYNE KLINE; JOHN/JANE DOE 1 TO 5 IN

THEIR INDIVIDUAL CAPACITIES WHO ARE

UNKNOWN STATE ACTORS; JOHN/JANE DOE 6 TO 10

IN THEIR INDIVIDUAL CAPACITIES WHO ARE

UNKNOWN FEDERAL EMPLOYEES, AGENTS OR

ACTORS; CHRISTOPHER JONES, IN THEIR

INDIVIDUAL CAPACITIES AS POLICE OFFICERS FOR

EAST LAMPETER TOWNSHIP; MARIAN ADAMS, in

their individual capacities as Pennsylvania

State Troopers; and; EAST LAMPETER TOWNSHIP
*Honorable David R. Hansen, Senior Circuit Judge for

the Eighth Circuit Court of Appeals, sitting by designation.

2

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 04-cv-05695)

District Judge: The Honorable Paul S. Diamond

___________

ARGUED APRIL 10, 2007

Before: SMITH, NYGAARD, and HANSEN,*

 Circuit Judges.

(Filed May 22, 2008)

___________

J. Dwight Yoder, Esq. (Argued)

Gibbel, Kraybill & Hess

41 East Orange Street

Lancaster, PA 17602

Counsel for Appellants

John G. Knorr, III (Argued)

Office of the Attorney General of Pennsylvania

Department of Justice

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellees
1.Initially, the plaintiffs sued Trooper Linda Gerow,

Blaine Hertzog and Wayne Kline, six East Lampeter Township

police officers, five unknown state actors and five unknown

federal actors, alleging that the police officers acted at the

direction of White House personnel. The plaintiffs amended

their complaint twice, dismissed three Township officers, added

Trooper Adams and the Township as defendants, and withdrew

all claims respecting unknown state and federal actors. When

Mr. Egolf died on May 7, 2005, the District Court substituted

Egolf’s parents as plaintiffs. The District Court eventually

dismissed the Township police officers and the Township as

parties, pursuant to the parties’ stipulation. 

3

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Appellants, Tristan Egolf, Benjamin Keely, Jonathan

Kohler, David O’Bryant, and Adam Willard claimed that several

state and municipal actors violated their First and Fourth

Amendment rights by arresting them during a demonstration

against the war in Iraq.1

 The District Court granted summary

judgment for the police on all claims and denied appellants’
2.The District Court also granted summary judgment in

favor of the police with regard to the Petitioners’ claims that the

police violated their First and Fourth Amendment constitutional

rights. We do not reach constitutional issues unnecessarily, and

in this instance, we hold only that the police are entitled to

qualified immunity. See U.S. v. Otero, 502 F.3d 331, 334 n. 1

(3d Cir. 2007). 

3.The District Court exercised jurisdiction over this matter

pursuant to 28 U.S.C. §§1331 and 1343. We have jurisdiction

(continued...)

4

motion for partial summary judgment on the First and Fourth

Amendment claims. We will affirm the District Court’s holding

regarding the Trooper’s motion for summary judgment on their

qualified immunity claim.2

 

I.

 We have plenary review of the District Court’s grant of

summary judgment. 181 South Inc. v. Fischer, 454 F.3d 228,

231, n. 4 (3d Cir. 2006).3

 For the purpose of our review, we
3.(...continued)

over the District Court’s final order pursuant to 28 U.S.C.

§1291.

5

will accept the facts as determined by the District Court,

construing them in a light most favorable to the party that is

claiming a constitutional violation, in this case the protesters.

Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 2005). 

In the summer of 2004, President Bush was scheduled to

make an appearance in East Lampeter, Pennsylvania, as part of

his reelection campaign. Between three and four hundred adults

and children gathered along the motorcade’s expected route. The

East Lampeter Township police, with assistance from several

Troopers from the Pennsylvania State Police, were dispatched

to maintain order.

A group of people opposed to President Bush and the war

in Iraq gathered at a spot along the route. One protester, wearing

a t-shirt emblazoned with the words, “F--- Texas,” carried a
4.In the widely publicized image, several naked prisoners

at Abu Ghraib are piled on top of one another, with their backs

facing the camera. Two U.S. service members, Staff Sergeant

Charles Graner and Private First Class Lynndie England, stand

behind the men, smiling and giving a “thumbs-up” signal.

5.In fact, President Bush did not pass through the area

until 15-20 minutes later. 

6

large sign stating, “Great War, George.” Others nearby carried

signs declaring, “F--- Texas,” “F--- Bush,” “Regime Change

Begins at Home,” “Go Back to Texas,” and depicting Bush as

the “World’s No. 1 Terrorist.” 

These protesters planned to demonstrate their opposition

to the war in Iraq by recreating a notorious image from the

prisoner abuse scandal at Abu Ghraib.4

 When they believed the

presidential motorcade was near,5

 seven male protesters quickly

removed their shirts, pants, socks and shoes. Wearing only

thong underwear, they turned their buttocks toward the road.

Five men got on their hands and knees, and the other two men
7

climbed on top of them to form a pyramid. An associate of the

protesters, Kara Dimitris, stood behind the pyramid, gave a

“thumbs up” sign with one hand, and in the other, held up the

“Great War, George” sign. Another associate of the protester

group, Dan Rhineer, filmed the event. 

Those that formed the pyramid remained passive and

silent. Rhineer’s video recording evinces sounds of cheering

and some laughter in the surrounding crowd. Other people in

the surrounding crowd objected to the protest and they can be

heard demanding that the group put their clothes back on.

Rhineer defended the men exclaiming: “This happened!

Children need to know about this!” 

Pennsylvania State Police and officers from East

Lampeter Township were standing between the crowd and the

road maintaining order in anticipation of the Presidential

motorcade. At least one Pennsylvania State Trooper was
8

standing in front of the protesters as they undressed and formed

the pyramid. The video recording of the event shows that while

the police closest to the protesters saw the event, they did

nothing to immediately respond. Some bystanders began

loudly imploring to the officers to respond. 

Trooper Blaine Hertzog, monitoring the crowd near the

protesters, became concerned as yelling among the people grew

louder. He testified that he waved to Township Officer

Christopher Jones. Hertzog and Jones asked one another

whether the demonstration was illegal. After Jones signaled

other officers for assistance, Troopers Linda Gerow, Marian

Adams, and Wayne Kline headed to the scene. At that point,

Trooper Hertzog stated that he saw the protesters stacked upon

each other in a pyramid shape, and he saw their “buttocks and

the thongs.” 
6.At her deposition, Trooper Gerow explained, “It was a

public place. There were children everywhere. . . . There was a

group of men mooning, you know, the general public for no

reason, and it was obviously alarming and offensive to those

around them. It was to me. These are grown men that had tight

little thongs on in a public place where you would expect people

(continued...)

9

Trooper Hertzog testified during a deposition that he and

Officer Jones did not, on their own, take enforcement action

relative to the protesters, nor had they concluded one way or the

other that any illegal activity was occurring. They moved in

only when a Trooper who was arriving at the scene on foot

made the command to arrest the protesters. The immediate

concern noted by Trooper Hertzog in those moments was the

increasing tension in the crowd that he was monitoring. 

When Trooper Gerow came upon the scene, the pyramid

had stood for less than two minutes. Upon arriving, she saw

men clad in tight thongs “mooning” the crowd and she

immediately pulled one of the men off the pyramid.6

 The other
6.(...continued)

to be clothed...You know, its not something I really had to think

about.”

10

officers then arrested Egolf, Keely, Kohler, O’Bryant, Russell

Willard, and Adam Willard. 

As the police began to pull the men out of their

formation, surrounding associates of the protesters responded

that the men were not doing anything illegal. Nonetheless, the

protesters complied with the direction of the officers who took

them away from the scene. The police did not arrest one

member of the pyramid who had quickly put on his pants and

shirt. 

The Township police then took the protesters to the

police station and charged them with disorderly conduct. The

police held the men for approximately two hours and then

released them. Three months later, the Lancaster County District

Attorney announced that he had withdrawn the disorderly
7.The police did not participate in the decision to charge

the men, or to withdraw the charges.

8.Police charged the protesters with disorderly conduct at

the time of the arrest. (18 Pa. C.S. 5503(a)). The District

Attorney dropped these charges three months after the arrest.

Yet, obviously aware that probable cause need only exist as to

any offense that could be charged under the circumstances, the

(continued...)

11

conduct charges because he doubted that the Commonwealth

could successfully prosecute the matter.7

Egolf, Keely, Kohler, O’Bryant and Adam Willard filed

suit under 42 U.S.C. §1983, alleging that their arrests violated

the First and Fourth Amendments. The police moved for

summary judgment. Appellants filed a motion for partial

summary judgment. 

Addressing the protesters’ claimed violations of their

constitutional rights, the District Court noted that the facts of

this case present a question not yet addressed by Pennsylvania

courts.8

 Relying on our opinion in Radich, the District Court
8.(...continued)

police argued before the District Court that they had probable

cause to arrest the protesters under the Pennsylvania lewdness

statute. See Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d

Cir. 1994).

12

held that the ambiguity of whether or not the appellants violated

Pennsylvania’s Open Lewdness Act was reason enough to give

the police probable cause to arrest the protesters. In Radich, we

held that police officers cannot be expected to accurately predict

the court’s interpretation of an issue of first impression.

Therefore, in some such cases, it is reasonable to find that the

police had probable cause. Radich v. Goode, 886 F.2d 1391,

1398 (3d Cir. 1989). 

 Alternately, predicting that Pennsylvania courts would

find that the protesters engaged in prohibited lewd conduct, the

District Court found that a reasonable officer would have

decided that probable cause existed to arrest the protesters.
13

Upon these bases, the District Court concluded that the police

did not violate the Fourth Amendment rights of the protesters.

The District Court also concluded that the police did not

violate the First Amendment. As applied in this instance, the

court found that the police’s arrest of the protesters under the

lewdness statute was a permissible restriction on expressive

conduct using the analysis detailed in United States v. O’Brien,

391 U.S. 367 (1968).

Finally, the District Court concluded that, even if the

police violated the constitutional rights of the protesters under

either the First or Fourth Amendments, the police had qualified

immunity from suit. The court granted immunity on the basis

that the constitutional rights were not “clearly established” in the

circumstances of this case. This appeal followed. 

We have a longstanding practice of avoiding

constitutional questions in cases where we can reach a decision
14

upon other grounds. See U.S. v. Otero, 502 F.3d 331, 334 n. 1 (3d

Cir. 2007). In this instance, we agree with the District Court that,

regardless of whether the police violated the protesters’ First and

Fourth Amendment rights, these rights were not “clearly

established” in this circumstance. On this basis, and for the

reasons set out below, we will affirm the District Court’s grant

of qualified immunity to the police but we will not address the

First and Fourth Amendment questions raised in this case. 

II.

The assessment of qualified immunity normally involves

two steps. In the usual case, we must assess whether the facts

alleged, viewed in the light most favorable to the party asserting

the injury, demonstrate that the state actor’s conduct violated a

constitutional right. Where a constitutional violation exists, we

then move to a second tier of analysis to determine whether the

violated right was “clearly established.” Saucier v. Katz, 533
9.The majority does not hold the view that Saucier

abrogated the long-standing maxim that courts will not reach

constitutional issues unnecessarily. Saucier, 533 U.S. at 207

(“[T]he [sequential] procedure permits courts in appropriate

cases to elaborate the constitutional right with greater degrees

of specificity.”(emphasis added)).

15

U.S. 194, 200 (2001); Gilles, 427 F.3d at 203. We find in this

case an exception to this generally mandated analytic

framework.9

A.

Although Saucier requires that courts engage a two-tiered

analysis that first examines whether a constitutional violation

exists, we must approach this framework in a manner that is

consistent with its purpose. As Saucier clearly explains, the

underlying principle of first requiring constitutional analysis is

to advance the elaboration of the law to give state actors better

guidance on the parameters of constitutional violations.
10.Pennsylvania law states that “[a] person commits a

misdemeanor of the third degree if he does any lewd act which

he knows is likely to be observed by others who would be

affronted or alarmed.” 18 Pa.C.S.A. § 5901. The Pennsylvania

Supreme Court has favorably referenced a comment to the

Model Penal Code that states: “The prohibited [lewd] conduct

amounts to gross flouting of community standards in respect to

sexuality or nudity in public.” (emphasis added) Heinbaugh, 354

A.2d at 247, citing Model Penal Code Comment at p. 81.

Nudity or overt sexually offensive displays are therefore

essential to “lewd” conduct. Id. (citing Winters v. New York,

333 U.S. 507, 515 (1948). We presume then, for purposes of

this analysis that the elements of a violation of Pennsylvania’s

lewdness statute to be: nudity and/or sexually explicit displays;

in circumstances likely to be observed by the public; that causes

offense or alarm due to its gross departure from accepted

community standards. Id., See Commonwealth v. Williams, 574

A.2d 1161, 1163 (1990). The essence of the inquiry here is

(continued...)

16

Saucier, 533 U.S. at 200; Gilles 427 F.3d at 203. This principle

guides our resolution of this case.

 Although the District Court thoroughly reviewed the

First and Fourth Amendment claims, it found that the state law

questions underlying the constitutional issues were ones of first

impression for the state courts.10 Accordingly, in both claims of
10.(...continued)

whether exposure of one’s buttocks constitutes “nudity” which,

to date, has been defined under the statute as either fully

unclothed or exposing genitalia.

11.The legal definition of nudity is in this case the essence

of a constitutional analysis of the Fourth Amendment under

qualified immunity. By extension, this definition is also critical

to the District Court’s determination of whether the state had a

legitimate interest in regulating nudity under an O’Brien First

Amendment review. See U.S. v. O’Brien, 391 U.S. 367 (1968).

17

constitutional violations the District Court’s analysis relied upon

its prediction of how the Pennsylvania courts would rule if this

case was before them.11 We find such cases to be exceptions to

the constitutional analysis requirement of Saucier, because the

purpose of Saucier would be undermined.

In concluding that we will not analyze the First or Fourth

Amendment issues in this case, we find a decision of the Court

of Appeals for the Second Circuit to be persuasive in reasoning

that the underlying principle of law elaboration is not
12.We recognize the District Court’s alternate rationale for

finding probable cause was based upon the ambiguity that, we

agree, exists. However, this ambiguity does not provide us with

a compelling rationale to rule on a constitutional issue where

alternate grounds for a decision exist.

18

meaningfully advanced in situations, such as this, when the

definition of constitutional rights depends on a federal court's

uncertain assumptions about state law. Ehrlich v. Town of

Glastonbury, 348 F.3d 48, 55-58 (2d Cir. 2003); See also

Robinette v. Jones, 476 F.3d 585, 592 n.8 (8th Cir. 2007). We

agree that, in cases such as this, federal courts do a disservice to

state actors who would be induced to rely on a ruling that might

change altogether upon subsequent review by the state court.

Ehrlich, 348 F.3d at 58. Our position is bolstered by the fact

that, even if we were to find constitutional rights violations we

are convinced that such rights were not clearly established.12

B. 
19

The second prong of the qualified immunity analysis is

focused upon “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202; Gilles, 427 F.3d at 203. Qualified

immunity turns on the “objective legal reasonableness of the

action . . . assessed in light of the legal rules that were clearly

established at the time.” Anderson v. Creighton, 483 U.S. 635,

639 (1987). Courts have defined the term “clearly established”

to mean “some but not precise factual correspondence between

relevant precedents and the conduct at issue.” McLaughlin v.

Watson, 271 F.3d 566, 571 (3d Cir. 2001). It is now axiomatic

that our qualified immunity analysis “gives ample room for

mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” Gilles,

427 F.3d at 203.
20

Here, even if we assume that the police violated the

protesters’ rights under the First and Fourth Amendments by

arresting them, we are mindful that the circumstances were quite

unusual. There is no dispute that events relating to the group’s

undressing and posing developed quickly. At the same time,

other members of the crowd were loudly making objections

against the protesters. The escalation of tension at the scene was

sudden, surprising and intense. All evidence shows that it was

this rising disturbance of the crowd that captured the attention

and concern of the officers who responded. 

 Furthermore, all of this occurred at a time that the

officers were keenly aware of their immediate responsibilities to

keep the crowd under control in anticipation of a passing

Presidential motorcade. Even though the protection of the

President was within the ambit of other officials, maintaining

order within the crowd alongside the motorcade route (which
21

was the police’s responsibility) was undeniably an important

component of the overall security for the President on that day.

The officers did not have the luxury of ignoring the brewing

anger. We recognize that a sudden disruption in a crowd does

not, of itself, justify unreasonable arrests. It does, however,

compel us to appreciate the pressures that burdened the

judgments of the officers on that day and the emotionallycharged prism through which the bystanders appeared to view

the disturbance. Saucier, 533 U.S. at 204-5; Gilles, 427 F.3d at

203.

Adding to the confusion is the fact that the protesters

intentionally chose to simulate the abhorrent image of Abu

Ghraib: an image that was inherently offensive from a number

of perspectives precisely because it showed naked prisoners who

were forced to pose in a sexually humiliating manner. The

protesters admitted that they intentionally clothed themselves in
22

a manner that closely simulated the nudity of the original

photograph. Therefore, even the protesters believed that they

were brushing closely to the boundaries of a publically indecent

act. Moreover, the choice that the protesters made to portray this

particular image generates a question that would have been

difficult to assess on the scene: whether the depiction of an

inherently sexually offensive image is any less shocking simply

because people recreate it as a protest. While we can rationalize

from our vantage point that the scene created by the protesters

might be distinguishable from the original image, the objective

on-the-scene perspective required of us in this qualified

immunity review inexorably mires such contrasts. For these

reasons, we conclude that there is ample evidence that this event

was precisely the type of scene envisaged in Saucier, where an

officer in the field must make “split second judgments – in
23

circumstances that are tense, uncertain and rapidly evolving.”

Id.

This situation demanded an instantaneous, finely

calibrated judgment in response to a disturbance that arose amid

circumstances that were undeniably unique, surprising,

confusing and charged. It was plainly one in which the

parameters of probable cause were confusing and the boundaries

of free speech were quite muddled. McLaughlin, 271 F.3d at

571. As a result, we cannot characterize the officers’ actions,

for purposes of qualified immunity, as either incompetent or as

willful violations of the law. 

For these reasons, we conclude that, even if the officers’

decision to arrest the protesters was mistaken, it was a

reasonable mistake in the context in which it occurred. We do

not find error in the District Court’s grant of qualified immunity

to the police.
13. I fully recognize that a number of circuits have

declined to follow Saucier and that there have been doubts

expressed, by some of the courts of appeals and the Supreme

Court alike, regarding the wisdom of Saucier’s mandatory twostep approach to resolving questions of qualified immunity. See,

e.g., Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006)

(continued...)

24

III. 

For the reasons stated above we affirm the district court’s

grant of summary judgment in favor of the police on the issue of

qualified immunity. 

Egolf v. Witmer, No. 06-2193.

SMITH, Circuit Judge, concurring.

Like the majority, I conclude that we should affirm the

District Court’s grant of summary judgment in favor of the State

Troopers. I write separately, however, because I believe the

constraints of Saucier v. Katz, 533 U.S. 194 (2001), compel a

different analytical path.13
13.(...continued)

(“We do not think the law elaboration purpose will be well

served here, where the Fourth Amendment inquiry involves a

reasonableness question which is highly idiosyncratic and

heavily dependent on the facts. . . . Given the complexity of the

matter, and since it is perfectly clear that the officers are entitled

to immunity, we turn to the second and third prongs.”);

Robinette v. Jones, 476 F.3d 585, 592 n.8 (8th Cir. 2007)

(“Saucier requires a full analysis of the first prong of a qualified

immunity analysis because it ‘permits courts in appropriate

cases to elaborate the constitutional right with greater degrees of

specificity.’ However, the ‘law’s elaboration from case to case’

. . . would be ill served by a ruling here, where the parties have

provided very few facts to define and limit any holding on the

reasonableness of the execution of the arrest warrant.”) (internal

citations omitted); McClish v. Nugent, 483 F.3d 1231, 1253 n.1

(11th Cir. 2007) (Anderson, J., concurring specially)

(“Unfortunately, in this case, because the defendants prevailed

on the clearly established prong, the Saucier rule not only

requires a constitutional holding that would be unnecessary

otherwise; it also operates to insulate from further appellate

review an erroneous constitutional ruling that will guide the

conduct of police officers in three states. . . . Also, under the

Saucier approach, a court is handicapped in addressing the

constitutional issue because at least one party often has little

incentive to litigate the issue vigorously, especially when it is

apparent that the law is not clearly established, as in this case.”);

Lyons v. City of Xenia, 417 F.3d 565, 581–84 (6th Cir. 2005)

(Sutton, J., with whom Gibbons, J., joins, concurring) (“I cannot

(continued...)

25
13.(...continued)

resist adding still another separate writing in this case that

questions the rigidity of [the Saucier] requirement. While I see

the virtue in telling lower courts that they should generally

answer the constitutional question before the clearly established

question, I wonder whether it makes sense to mandate that they

do so in all cases, no matter the costs, no matter the ease with

which the second question might be answered.”). Further,

twenty-eight states and Puerto Rico have recently urged, albeit

unsuccessfully, the Supreme Court in an amicus brief to

reconsider its mandatory Saucier approach to qualified

immunity. See Brief for Twenty-Eight States and Puerto Rico

as Amici Curiae in Support of Petitioner, Scott v. Harris, 127

S.Ct. 1769 (2007) (No. 05-1631).

 Most recently, the Supreme Court granted certiorari in

the case of Callahan v. Millard County, 494 F.3d 891 (10th Cir.

2007), directing the parties to brief and argue “[w]hether the

Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should

be overruled.” Pearson v. Callahan, --- S.Ct. ----, 2008 WL

754340, 76 USLW 3316, 76 USLW 3508, 76 USLW 3510 (U.S.

Mar 24, 2008) (No. 07-751). 

26

The majority acknowledges that “Saucier requires that

courts engage a two-tiered analysis that first examines whether

a constitutional violation exists.” Yet, the majority declines to

follow this mandate because it finds that doing so in this case
27

would not accomplish Saucier’s purpose. It may be that the

Supreme Court will return to its pre-Saucier jurisprudence,

where determining first whether the plaintiff has alleged a

deprivation of a constitutional right is considered only the

“better approach.” See County of Sacramento v. Lewis, 523 U.S.

833, 842 (1998); see also Siegert v. Gilley, 500 U.S. 226 (1991)

(clarifying the analytical structure under which a claim of

qualified immunity should be addressed). For now, however, I

regard the Saucier rule as mandatory and do not believe that

inferior courts are free to depart from it. In Scott v. Harris, 127

S.Ct. 1769 (2007), the Court explicitly stated: 

In resolving questions of qualified immunity,

courts are required to resolve a “threshold

question: Taken in the light most favorable to the

party asserting the injury, do the facts alleged

show the officers conduct violated a constitutional

right? This must be the initial inquiry.” If, and

only if, the court finds a violation of a

constitutional right, “the next, sequential step is to
14. Along with the majority, I do not hold the view that

Saucier intended to disavow the prudential rule of avoiding

constitutional questions. Rather, the Saucier Court recognized

a competing goal—the development of substantive

constitutional protections in the constitutional tort context that

might otherwise go undeveloped if lower courts routinely

disposed of § 1983 cases without reaching the merits. Indeed,

a right can never be “clearly established” if the right has never

(continued...)

28

ask whether the right was clearly established . . .

in light of the specific context of the case.”

Scott, 127 S.Ct. at 1774 (emphasis added) (internal citations

omitted). See also Bunting v. Mellen, 541 U.S. 1019 (2004)

(Scalia, J. dissenting from the denial of certiorari) (“[S]ome

courts [have] conclude[d] (mistakenly) that the constitutionalquestion-first rule is customary, not mandatory.”). Perhaps in

circumstances where the underlying principle of law elaboration

is not meaningfully advanced or where a court would be

required to address unsettled questions of state law, the

jurisprudential policy of avoiding unnecessary adjudication of

constitutional issues is actually the better approach.14 But until
14.(...continued)

been recognized at all. The Supreme Court “has never treated

avoidance as an absolute; it is a policy aimed at specific

objectives, and these nearly always compete with other goals.”

Michael L. Wells, The “Order-of-Battle” in Constitutional

Litigation, 60 SMU L. Rev. 1539, 1543 (2007). While I do not

express a view as to whether the Court’s articulated goal

counsels against applying the “long-standing maxim,”

adherence to Saucier’s “order of battle” does not require one to

accept that Saucier abrogated the prudential rule. 

In this vein, the majority’s citation of Saucier, that, “the

[sequential] procedure permits courts in appropriate cases to

elaborate the constitutional right with greater degrees of

specificity” must be read within the context of the entirety of the

opinion, and the Court’s subsequent jurisprudence. (Majority

Op. at 15 n.9) (quoting Saucier, 533 U.S. at 207) (emphasis

added). At the outset of the Saucier opinion, the Court explains

that in furtherance of determining whether a constitutional right

was violated, there may be cases in which it is appropriate, and

indeed necessary, to elaborate on the constitutional right with

respect to the new set of facts before the court, so that the right

may be clearly established in later cases. See Saucier, 533 U.S.

at 201. Specifically, the Court stated that 

In the course of determining whether a

constitutional right was violated on the premises

alleged, a court might find it necessary to set forth

principles which will become the basis for a

holding that a right is clearly established. This is

(continued...)

29
14.(...continued)

the process for the law’s elaboration from case to

case, and it is one reason for our insisting upon

turning to the existence or nonexistence of a

constitutional right as the first inquiry. The law

might be deprived of this explanation were a court

simply to skip ahead to the question whether the

law clearly established that the officer’s conduct

was unlawful in the circumstances of the case. 

Id. Further, the majority cannot possibly be arguing that its

citation to Saucier supports a view that the two-step approach is

merely permissive, i.e., should in actuality only be employed “in

appropriate cases.” Indeed, the Court’s subsequent

jurisprudence reiterating its mandatory nature, as well as the

dissents filed in those opinions, compel a contrary interpretation.

30

the Supreme Court crafts an exception to the Saucier rule, it is

my view that we are not free to make that policy choice,

however salutary. See, e.g., Doe v. Delie, 257 F.3d 309, 315 n.4

(3d Cir. 2001) (“While there may be pragmatic considerations

favoring [the] qualification of the Supreme Court’s unqualified

language, the Court has not yet suggested any basis for

departing from the rule . . . .”). I believe, therefore, that the
31

proper analytical course in this case is first to consider whether

the Troopers violated the Constitution. 

Because I conclude that, on the facts alleged, the

Troopers’ conduct did not violate the Plaintiffs’ constitutional

rights, my analytical course would not require that we reach the

question of qualified immunity. 

I.

Plaintiffs allege that the Troopers violated their Fourth

Amendment rights by arresting them without probable cause.

They argue that their conduct did not present the Troopers with

probable cause to arrest because they were engaging in protected

First Amendment activity and, as such, the expressive nature of

their conduct should have been taken into account by the

Troopers in making their probable cause determination at the

scene.
32

Probable cause to arrest exists when “the facts and

circumstances within the arresting officer’s knowledge are

sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. New Jersey State Police, 71

F.3d 480, 482 (3d Cir. 1995). “To determine whether an arrest

is valid, we look to the law of the state where the arrest took

place.” Wright v. City of Philadelphia, 409 F.3d 595, 601 (3d

Cir. 2005) (citations omitted). The question of “probable cause

in a section 1983 damage suit is one for the jury.” Montgomery

v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998). However, a

district court may conclude “that probable cause did exist as a

matter of law if the evidence, viewed most favorably to Plaintiff,

reasonably would not support a contrary factual finding,” and

may grant summary judgment accordingly. Sherwood v.

Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). 
15. As stated, Plaintiffs contend that their First and Fourth

Amendment rights are inextricably linked—that the Troopers

lacked probable cause to arrest them because their conduct was

protected under the First Amendment. Indeed, when pure

speech is at issue this Court has stated that

[T]he statute must “be carefully drawn or authoritatively

construed to punish only unprotected speech and not be

(continued...)

33

 The Troopers contend that they had probable cause to

arrest the Plaintiffs because their conduct violated

Pennsylvania’s open lewdness statute, which provides that “[a]

person commits a misdemeanor of the third degree if he does

any lewd act which he knows is likely to be observed by others

who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901. The

relevant inquiry, then, is whether it was objectively reasonable

for the Troopers to conclude that they had probable cause to

arrest the Plaintiffs based on “the facts available to the officers

at the moment of arrest.” Barna v. City of Perth Amboy, 42 F.3d

809, 819 (3d Cir. 1994) (quotation omitted).15
15.(...continued)

susceptible of application to protected expression.”

Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003)

(quoting Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct.

1103, 31 L.Ed.2d 408 (1972)); Commonwealth v.

Mastrangelo, 489 Pa. 254, 414 A.2d 54, 58 (1980)

(“disorderly conduct statute may not be used to punish

anyone exercising a protected First Amendment right”).

Speech that does not receive First Amendment

protection, in turn, “include[s] the lewd and obscene, the

profane, the libelous, and the insulting or ‘fighting’

words[.]” Chaplinsky v. New Hampshire, 315 U.S. 568,

572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

Gilles v. Davis, 427 F.3d 197, 204 (3d Cir. 2005). The interplay

of Fourth and First Amendment rights with respect to expressive

conduct, as opposed to speech, does not give rise to clear rules

of application. Here, expressive conduct is unquestionably at

issue, as I discuss later. Yet, it is also clear that the open

lewdness statute prohibits conduct that is inherently unrelated to

the political message that the Plaintiffs attempted to convey.

This reality is important, especially in a case such as this in

which police officers are required to make an on-the-spot

probable cause determination. Because the Plaintiffs do not

facially attack the statute as overbroad or void for vagueness,

and because I conclude that the statute was constitutionally

applied to the Plaintiffs and that probable cause for arrest

existed, I need not further consider the extent of the relationship.

(continued...)

34
15.(...continued)

35

A review of the record, particularly the videos of the

event, reveals that a crowd had gathered along the side of a

small commercial highway. Kara Dimitris appeared in the

videos wearing a green shirt, a hat and yellow gloves and

carrying a sign saying, “Great War, George.” When she

shouted, “Shirts off,” the Plaintiffs removed their clothes until

they were wearing only thong underwear. The District Court

observed that “the thin material of their tight-fitting thongs

unmistakably displayed the contours and movement of their

genitals. . . . From the rear, the thongs displayed the entire

surface of their buttocks; from various angles, Plaintiffs

appeared to be entirely naked.” Egolf v. Witmer, 421 F.Supp.2d

858, 864 (E.D.Pa. 2006). An examination of the record reveals
36

that the contours and movement of the Plaintiffs’ genitals could

be seen by bystanders while the Plaintiffs arranged themselves

into the pyramid, but not while they were in the pyramid

formation. And the thongs revealed the entire surface of each

Plaintiff’s buttock. The Plaintiffs did not disrobe with great

speed, but then quickly formed a human pyramid. The videos

show young children, including toddlers, in the immediate area.

Several members of the crowd quickly became agitated,

shouting at the Plaintiffs and at Dan Rhineer, the cameraman.

Several women observed that their children were present and

upbraided the protesters. Others made unfavorable comments

about their taste and respect for authority. Rhineer attempted to

explain the protest, stating that “This has happened before,” and

that, “American soldiers did this [to prisoners].” When Rhineer

remarked that children needed to learn about the Abu Ghraib
37

torture, one concerned onlooker responded, “Not naked they

don’t.” 

Pennsylvania case law interpreting what constitutes a

“lewd act” has consistently maintained that the essence of a

“lewd act” is “sexuality or nudity in public,” without much

elaboration. See Commonwealth v. Fenton, 750 A.2d 863, 866

(Pa.Super. 2000) (citing Commonwealth v. Williams, 574 A.2d

1161 (Pa.Super. 1990)). In the case of Commonwealth v.

Heinbaugh, 354 A.2d 244, 247 (Pa. 1976), the Pennsylvania

Supreme Court concluded that § 5901 “must be read as restating

the established common law standard which has long existed in

this Commonwealth.” The Court explained:

Open lewdness was an indictable offense at

common law. It was defined as an act of gross and

open indecency which tends to corrupt the morals

of the community. Winters v. New York, 333 U.S.

507, 515, 68 S.Ct. 665, 92 L.Ed. 840, 849 (1948);

Commonwealth v. Sharpless, 2 Serg. & R. 91, 100

(1815); IV Blackstone Commentaries 64 n.38

(W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4
16. The Williams Court looked to a summary of

Pennsylvania’s case law on open lewdness as laid out by a

majority of the Supreme Court of Pennsylvania:

All prosecutions have been based . . . on a “gross

(continued...)

38

(1948). While the language of the challenged

Pennsylvania lewdness statute differs in some

respects from this common law definition, there is

no difference in meaning. The statute in question

is a verbatim adoption of the lewdness provision

of the Model Penal Code, ALI, Model Penal

Code, Proposed Official Draft 251.1. The

comment to that section makes it clear that the

drafters intended to codify the pre-existing

common law: “Lewd or indecent behavior is

punishable in all jurisdictions. The prohibited

conduct amounts to gross flouting of community

standards in respect to sexuality or nudity in

public.” ALI, Model Penal Code, Tentative Draft

No. 13 §§ 213.4 & 251.1 Comment at p. 81.

Heinbaugh, 354 A.2d at 247. Since Heinbaugh, it appears that

“[a]ll of the reported Pennsylvania cases on open lewdness

involved public masturbation or public displays of genitalia.”

Commonwealth v. Williams, 574 A.2d 1161, 1163 (Pa.Super.

1990).16 Nevertheless, “lewd” acts remain interpreted as
16.(...continued)

flouting of community standards in respect to

sexuality or nudity in public.” See Commonwealth

v. Heinbaugh, supra (masturbation in public);

Commonwealth v. Davidson, 220 Pa.Super. 451,

289 A.2d 250 (1972) allocatur refused, 221

Pa.Super. xlix (naked motorist stopped a young

lady to ask directions); Commonwealth v.

Falcone, 202 Pa.Super. 474, 198 A.2d 421 (1964)

(masturbation in a public cemetery);

Commonwealth v. Warner, 51 Pa.D.&C.2d 63

(C.P. Centre Cnty. 1971) (defendant disrobed in

public, made uninvited visits to private homes,

and entered a public pizza parlor);

Commonwealth v. Anzulewicz, 42 Pa.D.&C.2d

484 (Q.S. Mont. Cnty. 1967) (display of genitalia

in private dwelling but in front of window where

a neighboring family “in the reasonable use of

(their) house” could not help but observe

defendant’s activities); Commonwealth v. Helms,

38 Pa.D. & C.2d 496 (Q.S. York Cnty.), aff’d per

curiam, 206 Pa.Super. 743, 213 A.2d 389 (1966)

(no offense made out where defendant’s nudity

was in a private trailer and prosecution witness

had to observe through small, louvered window);

Commonwealth v. Alessi, 29 Erie 172 (Q.S. 1947)

(masturbation in a private home but before large

window facing public street).

(continued...)

39
16.(...continued)

Williams, 574 A.2d at 1163 (quoting Commonwealth v. Allsup,

392 A.2d 1309, 1312 (1978)). 

40

“sexuality or nudity in public.” Commonwealth v. Tiffany, 926

A.2d 503, 510–11 (Pa.Super. 2007) (citing Commonwealth v.

Fenton, 750 A.2d 863, 866 (Pa.Super. 2000)). While Tiffany

dealt with the conviction of a man who swam nude in a public

place with minors, the court, when discussing the § 5901

conviction, explained only that “Section 5901 pertains to

conduct that: ‘1) involves public nudity or public sexuality, and

2) represents such a gross departure from accepted community

standards as to rise to the level of criminal liability.’” Id. (citing

Williams, 574 A.2d at 1163). 

 What the Pennsylvania cases make clear, then, is that

either public nudity or public sexuality must have occurred to

establish a violation of § 5901, not necessarily both. See, e.g.,

Commonwealth v. Polomchak, 10 Pa.D. & C.4th 395, 397 (C.P.
41

Bucks Co. 1991), aff’d, 421 Pa.Super. 635, 612 A.2d 535 (1992)

(finding defendant guilty of violating § 5901 where he sat at a

bar with his hand in his lap underneath his coat and masturbated

or feigned masturbation, noting that “actual nudity is not a

required element of the crime of open lewdness”); Williams, 547

A.2d 1161 (holding that a public appearance in a t-shirt and

“tight-fitting briefs” is not a lewd act). 

The Troopers do not argue, nor could they, that the

Plaintiffs’ conduct constituted public sexuality. The question,

then, is whether the Plaintiffs’ conduct gave the Troopers

probable cause to arrest them for open lewdness in light of the

fact that, to date, the reported § 5901 cases involving nudity

include only display of genitalia.

My read of Pennsylvania law is that it contemplates a

fairly broad definition of nudity. The statutory definition of

“nudity” in other Pennsylvania statutes suggests that exposure
42

of the buttocks, the conduct Plaintiffs engaged in here, falls

within § 5901’s ambit. For example, the Pennsylvania statute

regulating distribution of obscene materials defines “nudity” as

the “showing of the human male or female genitals, pubic area,

or buttocks with less than a fully opaque covering, or the

showing of the female breast with less than a fully opaque

covering of any portion thereof below the top of the nipple, or

the depiction of covered male genitals in a discernibly turgid

state.” 18 Pa.C.S. § 5903 (emphasis added). In addition,

Pennsylvania’s statute prohibiting “invasion of privacy” defines

“[f]ull or partial nudity,” as, “[d]isplay of all or any part of the

human genitals or pubic area or buttocks . . . with less than a

fully opaque covering.” 18 Pa.C.S.A. § 7507.1 (emphasis

added). Therefore, if Pennsylvania courts import into § 5901

the statutory definitions of nudity from other sections of the
43

Pennsylvania Crimes Code, it is reasonable to conclude that

exposure of the buttocks qualifies as “nudity.” 

One might argue that a Pennsylvania court following

Williams would hold that the Plaintiffs’ actions fall within the

Williams Court’s holding that “walking about in underwear may

be a foolish act,” but it is not an illegal one. Williams, 574 A.2d

at 1163. In Williams, the court noted that the Commonwealth

established only that appellant walked through a parking lot in

a T-shirt and underwear. Id. The court then explained that the

“[a]ppellant’s behavior cannot reasonably be found to fall within

the purview of [§ 5901]. A person who is wearing a T-shirt and

underwear is not appearing in the nude, and walking about in

underwear may be a foolish act but is not a sexual act.” Id.

The case at bar offers clear distinctions from the facts in

Williams. As already stated, the statutory definition of “nudity”

in other Pennsylvania statutes encompasses exposure of the
17. The District Court noted that state laws similar to §

5901 have been construed similarly:

For instance, the Massachusetts Supreme Judicial

Court recently held that a man violated

Massachusetts’ open lewdness statute when, clad

in thong underwear, he lowered his pants and

exposed his buttocks to four teenagers. See

Commonwealth v. Quinn, 439 Mass. 492, 789

N.E.2d 138 (2003). Quinn contended that he did

not violate the statute because he had kept his

genitals covered. Id. at 493, 789 N.E.2d 138.

(continued...)

44

buttocks—activity the Plaintiffs here unmistakably engaged in.

Thus, it is reasonable to say that they were “appearing in the

nude” under Pennsylvania law. Beyond that, one need hardly

resort to an expert on fashion to note the obvious distinction

between wearing “elastic tight-fitting briefs,” Williams, 574

A.2d at 1162, and tight-fitting thong underwear that

unmistakably displays the contours and movement of an

individual’s genitals, not to mention the entirety of that

individual’s buttocks.17
17.(...continued)

Like § 5901, the Massachusetts statute included

no definition of “lewdness,” and derived from the

common law. Id. at 493–95, 789 N.E.2d 138. The

Quinn Court reviewed analogous case law from

Florida, Michigan, Minnesota, Nevada, Vermont,

Virginia, and West Virginia, and found that none

of those decisions “cabin[ed] the offensive

conduct to the intentional exposure of genitals.”

Id. Accordingly, the Supreme Judicial Court held

that Quinn’s deliberate exposure of his buttocks

was a “lewd” act under Massachusetts law.

Egolf, 421 F.Supp.2d at 865–66.

45

A review of Pennsylvania law demonstrates that the

Troopers reasonably concluded that they had probable cause to

arrest Plaintiffs on violations of the open lewdness statute when

the Plaintiffs’ appeared at a public gathering in tight-fitting

thongs and beared their buttocks. Where the state of the law is

uncertain, this Court has refused to “impose upon a police

officer [] the duty to correctly predict how a court will answer

[an] unresolved and complex legal issue.” Radich v. Goode, 886
46

F.2d 1391, 1398 (3d Cir. 1989). Further, it was reasonable for

the Troopers to presume that actual exposure of the genitals was

not required in order to violate § 5901, as a separate statute

prohibits such conduct. See 18 Pa.C.S. § 3127 (“A person

commits indecent exposure if that person exposes his or her

genitals in any public place or in any place where there are

present other persons under circumstances in which he or she

knows or should know that this conduct is likely to offend,

affront or alarm.”); see also Commonwealth v. Polomchak, 10

Pa. D. & C. 4th 395, 397 (C.P. Bucks Co. 1991) (“[A]ctual

nudity is not a required element of the crime of open

lewdness.”). 

Given the uncertainty in the application of Pennsylvania

law to the facts before us, we conclude that “[p]robable cause

exist[ed] [because] the facts and circumstances are sufficient to

warrant a prudent man in believing that the [Plaintiffs] had
47

committed or [were] committing an offense.” Radich, 886 F.2d

at 1395 (internal quotations omitted) (citing Beck v. Ohio, 379

U.S. 89, 91 (1964)). Thus, the Plaintiffs have not established

that their Fourth Amendment rights were violated, i.e., that they

suffered a constitutional deprivation under § 1983. 

II.

The Plaintiffs argue that the Troopers violated their First

Amendment rights by interfering with their protest. That would

require a court considering the initial Saucier question to decide

whether the Plaintiffs’ formation of the pyramid while wearing

only thong underwear constituted expressive conduct, permitting

them to invoke the First Amendment. See Texas v. Johnson, 491

U.S. 397, 403 (1989). If that court—or this panel—concluded

that the conduct was expressive, its next determination would be

whether the State’s regulation is related to the suppression of

free expression, i.e., whether the statute is content-neutral or
48

content-based. See id.; City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 48 (1986) (explaining that “‘content-neutral’

speech regulations as those that ‘are justified without reference

to the content of the regulated speech’” (citations omitted)).

And if the court concluded that the State’s regulation is not

related to expression, then the less stringent standard announced

in United States v. O’Brien, 391 U.S. 367 (1968), would control.

Johnson, 491 U.S. at 403. A contrary conclusion would place

the State’s regulation outside of the O’Brien test. Id. 

“In deciding whether particular conduct possesses

sufficient communicative elements to bring the First

Amendment into play,” the relevant inquiry is whether “‘[a]n

intent to convey a particularized message was present, and

[whether] the likelihood was great that the message would be

understood by those who viewed it.’” Johnson, 491 U.S. at 404

(quoting Spence v. Washington, 418 U.S. 405, 409–12 (1974)).
49

In reaching the constitutional claim, I am convinced that the

Plaintiffs intended to convey a particularized message when

they stripped down to thongs and formed a pyramid; and indeed,

the Troopers do not dispute this. Further, on an appeal from a

grant of summary judgment, it must be assumed that “the

likelihood was great that the message would be understood by

those who viewed it.” Spence, 418 U.S. at 411–12. Therefore,

I begin by recognizing that the Plaintiffs engaged in expressive

conduct. Accordingly, they are permitted to invoke the First

Amendment.

Generally, the Government has a “freer hand” in

restricting expressive conduct than restricting writings and

speech. Johnson, 491 U.S. at 406. The Government may not,

however, forbid particular conduct “because it has expressive

elements.” Id. Therefore, in order to determine whether the

O’Brien test applies here, I look to whether Pennsylvania has an
50

interest in regulating the conduct made illegal by § 5901 that is

unrelated to the suppression of expression. See id. at 407.

What is initially clear about § 5901 is that it was intended

to codify the common law. The statute was taken directly from

the Model Penal Code and is a descendant of the common law

offense of “open and notorious lewdness.” 14 West’s Pa. Prac.,

Crim. Offenses & Defenses O240 (5th ed.) (quoting 4

Blackstone, Commentaries *64). See also Heinbaugh, 354 A.2d

at 247. The purpose of the statute was to prohibit conduct that

tended to corrupt the morals of the community. Heinbaugh, 354

A.2d at 247 (citing Winters v. New York, 333 U.S. 507, 515

(1948)). The Supreme Court has made clear that “[t]he

traditional police power of the States is defined as the authority

to provide for the public health, safety, and morals.” Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 569 (1991). Accord The

License Cases, 46 U.S. (5 How.) 504, 527–28 (1847);

Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996); Metro. Life

Ins. Co. v. Massachusetts, 471 U.S. 724, 756 (1985). I am
18. Again, the statute reads: “[a] person commits a

misdemeanor of the third degree if he does any lewd act which

he knows is likely to be observed by others who would be

affronted or alarmed.” 18 Pa.C.S.A. § 5901. 

19. To the extent that the Plaintiffs intend this argument to

be a facial challenge to the statute, I do not address it as such

because I have concluded that the statute is content-neutral. 

51

satisfied that this interest is unrelated to expression, and

therefore, that the statute is content-neutral. 

The Plaintiffs argue that the statute18 is a content-based

regulation because it is based on “the conduct’s communicative

impact on others.”19 As the Troopers point out, however, the

Plaintiffs’ argument is essentially that

conduct which ‘alarms’ or ‘affronts’ others has a

‘communicative impact’ by virtue of the very fact

that it alarms or affronts. Offensive conduct is

thus by definition ‘communicative’—because it

offends people––and for the government to

proscribe such conduct is a ‘content-based

regulation’ because it proscribes the ‘message’ of,

well, offensiveness. 

Brief of Defendant-Appellees at 27. The Plaintiffs’ argument is

misplaced. It is a well-settled principle of our nation’s First

Amendment jurisprudence that ideas and speech may not be

proscribed merely because of the emotive impact they may have
20. Importantly, the record makes clear that the Plaintiffs’

political expression was not restricted because of the content of

the message they conveyed. See Texas v. Johnson, 491 U.S.

397, 412 (1989). The record shows that the crowd included

many other protesters, none of whom were arrested. Further, the

Troopers did not arrest one individual who participated in the

pyramid who “quickly dressed.” Egolf v. Witmer, 421

F.Supp.2d 858, 862 (E.D.Pa. 2006) (citing Pl. Mem. at 11). 

52

on listeners. See, e.g., Spence, 418 U.S. at 412; Boos v. Barry,

485 U.S. 312; R.A.V. v. St. Paul, 505 U.S. 377 (1992). Yet, I

know of no case in which the Supreme Court has extended this

proscription to conduct because it elicits an “emotive impact.”

The Plaintiffs’ attempt to elide the distinction between speech

and conduct, between ideas and action, must fail.20

For example, in R.A.V. v. St. Paul, several young men

were prosecuted for placing a burning cross in a black

neighbor’s yard, in violation of a St. Paul, Minnesota, ordinance

which prohibited placing “on public or private property a

symbol, object, appellation, characterization or graffiti,

including, but not limited to, a burning cross or Nazi swastika,

which one knows or has reasonable grounds to know arouses

anger, alarm or resentment in others on the basis of race, color,
53

creed, religion or gender.” 505 U.S. 377, 380 (1992) (citing St.

Paul Bias-Motivated Crime Ordinance, St. Paul, Minn.,

Legis.Code § 292.02 (1990)). The Supreme Court observed

that, “[c]ontent-based regulations are presumptively invalid,”

because “[t]he First Amendment generally prevents government

from proscribing speech, or even expressive conduct, because of

disapproval of the ideas expressed.” R.A.V., 505 U.S. at 382

(internal citations omitted). The Court further elaborated “that

nonverbal expressive activity can be banned because of the

action it entails, but not because of the ideas.” Id. at 385. The

R.A.V. Court made clear that the ordinance was content-based

not because it specified that the proscribed conduct had to

“arouse[] anger, alarm or resentment,” but because it further

restricted the impermissible bases of those sentiments to “race,

color, creed, religion or gender.” Id. at 385–88. R.A.V. v. St.

Paul makes clear that regulations of expressive conduct are

content-based only when the regulation is justified by an interest
21.The Miller test is, in full:

The basic guidelines for the trier of fact must be:

(a) whether “the average person, applying

contemporary community standards” would find

that the work, taken as a whole, appeals to the

prurient interest; (b) whether the work depicts or

describes, in a patently offensive way, sexual

conduct specifically defined by the applicable

state law; and (c) whether the work, taken as a

whole, lacks serious literary, artistic, political, or

scientific value.

Miller v. California, 413 U.S. 15, 23 (1973) (internal citations

omitted).

54

related to an idea or ideas communicated by the conduct, and

not because the conduct elicits a reaction.

Next, the Plaintiffs urge this court to refer to the Supreme

Court’s test for regulation of depictions of obscenity as

articulated in Miller v. California, 413 U.S. 15 (1973).21

However, Plaintiffs overlook the Miller Court’s express

distinction between depictions and descriptions of lewdness

from lewd public conduct, stating that, “[a]lthough we are not

presented here with the problem of regulating lewd public

conduct itself, the States have greater power to regulate
55

nonverbal, physical conduct than to suppress depictions or

descriptions of the same behavior.” Miller, 413 U.S. at 26 n.8.

The Court explicitly noted that the O’Brien test was appropriate

when dealing with the regulation of conduct embodying “both

speech and non-speech elements.” Id. 

Taken together, R.A.V. v. St. Paul and Miller v.

California teach that the O’Brien test is appropriate for the

regulation of lewd conduct that can be justified without

reference to expression of an idea. See also City of Erie v. Pap’s

A.M., 529 U.S. 277, 289 (2000) (“If the governmental purpose

in enacting the regulation is unrelated to the suppression of

expression, then the regulation need only satisfy the “less

stringent” standard from O’Brien for evaluating restrictions on

symbolic speech.”). Accordingly, application of the O’Brien

test is appropriate.

The next determination for a court in deciding the

constitutional question is whether the statute’s application to the

Plaintiffs satisfies the four-part test of O’Brien. In other words,
56

we must determine if the statute, as applied to the Plaintiffs, is

constitutional. I conclude that it is. The O’Brien Court held

that:

[A] government regulation is sufficiently justified

if it is within the constitutional power of the

Government; if it furthers an important or

substantial governmental interest; if the

governmental interest is unrelated to the

suppression of free expression; and if the

incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the

furtherance of that interest.

391 U.S. at 376–77. First, Pennsylvania has the power to

regulate public lewdness. The Supreme Court has often upheld

similar legislation as it falls within “[t]he traditional police

power of the States . . . to provide for the public health, safety,

and morals.” Barnes, 501 U.S. at 569. Second, the statute

furthers an important or substantial government purpose. The

Barnes Court held that a “public indecency statute furthers a

substantial government interest in protecting order and

morality.” Id. While the statute at issue is not designated as a

“public indecency” statute, it serves the same function of
57

protecting societal order and morality. See Barnes, 501 U.S. at

568. 

The third O’Brien factor—whether the government

interest is unrelated to the suppression of free expression—is

similar to the question of content-neutrality. See Pap’s A.M.,

529 U.S. at 296 (“[T]he regulation is still properly evaluated as

a content-neutral restriction because the interest in combating

the secondary effects associated with those clubs is unrelated to

the suppression of the erotic message conveyed by nude

dancing.”). The Government’s interest in discouraging

lewdness and protecting children and unsuspecting adults from

such acts is unrelated to the suppression of any message

intended to be conveyed by the lewd acts. See Commonwealth

v. Allsup, 392 A.2d 1309, 1311 (Pa. 1978) (explaining that

“[t]he gist of the crime is the immediate offensive or frightening

impact on members of the public who observe or are likely to

observe the defendant’s conduct”). As the District Court

recognized, the Plaintiffs’ argument—that they were
58

“expressing themselves” through their nudity—does not change

this conclusion. See Barnes, 501 U.S. at 571 (“Public nudity is

the evil the State seeks to prevent, whether or not it is combined

with expressive activity.”). 

The fourth O’Brien factor inquires whether the restriction

on First Amendment freedoms is no greater than necessary to

fulfill the Government’s interest. 391 U.S. at 377. See also

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994)

(“[T]he requirement of narrow tailoring is satisfied ‘so long as

the . . . regulation promotes a substantial government interest

that would be achieved less effectively absent the regulation.’”)

(citations omitted). The interest served by § 5901 is to prevent

lewd conduct in a setting where it clearly violates community

standards. See Pap’s A.M., 529 U.S. at 296. Plaintiffs do not

propose a less restrictive means of achieving this end than the

approach employed in § 5901, nor do I find it easy to posit one.

Furthermore, because this is a content-neutral restriction, the
59

least restrictive means analysis is not required. See Pap’s A.M.,

529 U.S. at 301–02. 

Because the State applied a content-neutral law in a

constitutional manner to the Plaintiffs, and because I have

already determined that the Troopers had probable cause to

arrest the Plaintiffs, I conclude that the Plaintiffs have failed to

show that they suffered a constitutional deprivation. I would

end our inquiry with that determination, and decline to reach the

question of qualified immunity. 

III.

Although I am unable to join the majority analysis, I

concur in the result and would affirm the District Court’s grant

of summary judgment in favor of the State Troopers.