1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-23-1999

Whiteland Woods, L.P. v. Twp. of W. Whiteland

Precedential or Non-Precedential:

Docket 97-1944

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Recommended Citation

"Whiteland Woods, L.P. v. Twp. of W. Whiteland" (1999). 1999 Decisions. Paper 263.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/263
Filed September 23, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1944 

WHITELAND WOODS, L.P., 

 Appellant 

v. 

TOWNSHIP OF WEST WHITELAND; 

WEST WHITELAND BOARD OF SUPERVISORS; 

WEST WHITELAND PLANNING COMMISSION; 

DIANE S. SNYDER; JERRY POLETTO; 

JACK C. NEWELL; KATHI HOLAHAN; 

NANCY CARVILLE; CARL DUSINBERRE 

v. 

JOHN D. SNYDER 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

D.C. Civil Action No. 96-cv-08086 

(Honorable Norma L. Shapiro) 

Argued June 5, 1998 

Before: SCIRICA, NYGAARD and SEITZ,* 

Circuit Judges 

Reargued December 4, 1998 

Before: SCIRICA, NYGAARD and ROSENN, Circuit Judges

(Filed: September 23, 1999) 

_________________________________________________________________ 

*The Honorable Collins J. Seitz was a member of the original panel but 

died before the matter was decided. 
 THOMAS A. RILEY, JR., ESQUIRE 

 (ARGUED 6/5/98 and 12/4/98) 

 Riley, Riper, Hollin & Colagreco 

 240 Daylesford Plaza 

 P.O. Box 568 

 Paoli, Pennsylvania 19301 

 Attorney for Appellant 

 THOMAS X. McANDREW, JR., 

 ESQUIRE 

 Siana & Vaughan 

 961 Pottstown Pike 

 P.O. Box 630 

 Exton, Pennsylvania 19341 

 JEFFREY R. BALDYGA, ESQUIRE 

 (ARGUED 6/5/98)** 

 Siana, Shields & Vaughan 

 961 Pottstown Pike 

 P.O. Box 630 

 Exton, Pennsylvania 19341 

 Attorneys for Appellees, 

 Township of West Whiteland; 

 West Whiteland Board of 

 Supervisors; West Whiteland 

 Planning Commission; Diane S. 

 Snyder; Jerry Poletto; Jack C. 

 Newell; Kathi Holahan; Nancy 

 Carville; Carl Dusinberre 

_________________________________________________________________ 

**Jeffrey R. Baldyga, Esquire, subsequently withdrew his appearance on 

behalf of Appellees, Township of West Whiteland, et al. 

 2 
 GEOFFREY C. JARVIS, ESQUIRE 

 (ARGUED 12/4/98) 

 RICHARD A. SPRAGUE, ESQUIRE 

 Sprague & Sprague 

 Wellington Building, Suite 400 

 135 South 19th Street 

 Philadelphia, Pennsylvania 19103 

 GUY A. DONATELLI, ESQUIRE 

 Lamb, Windle & McErlane 

 24 East Market Street 

 P.O. Box 565 

 West Chester, Pennsylvania 19381- 

 0565 

 Attorneys for Appellee, 

 John D. Snyder 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

In this civil rights action, real estate developer Whiteland 

Woods, L.P., a subsidiary of Toll Brothers, asserts that its 

First and Fourteenth Amendment rights were violated by a 

township's refusal to allow videotaping of a meeting of the 

Township Planning Commission. In a parallel state court 

action, the township acknowledged that Pennsylvania's 

Sunshine Act, 65 Pa. Stat. Ann. SS 271-86 (West Supp. 

1998), requires the township to allow videotaping of 

Planning Commission proceedings and agreed not to 

enforce the ban at future meetings. Whiteland Woods then 

filed this lawsuit under 42 U.S.C.A. S 1983 (West 1994) 

seeking monetary damages and attorney's fees. The District 

Court granted defendants' motion for summary judgment. 

We will affirm. 

I 

On June 24, 1996, Whiteland Woods filed a tentative

application with West Whiteland Township, Chester 

County, to build a residential community on a 162.5-acre 

 3 
parcel in the township. The application was placed on the 

agenda for the September 25, 1996 meeting of the West 

Whiteland Planning Commission. 

At the September 25 meeting, attorney Thomas A. Riley 

presented Whiteland Woods' application to the Planning 

Commission. Whiteland Woods had arranged for a video 

camera operator to attend the meeting and record the 

proceedings. Apparently in response to this videotaping, 

Township Solicitor John D. Snyder stated early in the 

meeting that he intended to discuss rules governing

videotaping, but that any changes to the rules would apply 

only to future meetings. During the meeting, Snyder

prepared a resolution barring the use of all video cameras 

at future Planning Commission meetings. The resolution 

provided in part: "The following rules shall govern the use 

of mechanical/electrical recording and/or stenographic 

devices during public meetings: . . . (5) No video taping or 

video recording and no additional lighting shall be

employed." 

Jack Newell, president of the Planning Commission, 

placed Snyder's resolution on the agenda and Snyder

presented it at the end of the meeting. Members of the 

Planning Commission discussed the proposed resolution, 

with participation by Riley and Michael Greenberg, vice 

president of Toll Brothers. Newell explained that he believed 

videotaping would inhibit candid discussion by township 

residents. Other members of the Planning Commission

expressed resentment at being videotaped and stated that 

videotaping could be intimidating. Greenberg, on the other 

hand, said he wanted a video record of all proceedings and 

Riley informed the Commission that he believed allowing 

videotaping was required by Pennsylvania's Sunshine Act. 

Nevertheless, the Planning Commission adopted the 

resolution banning videotaping by a vote of four to two. The 

Planning Commission did not prevent Whiteland Woods

from videotaping the September 25 meeting. 

On October 4, 1996, counsel for Whiteland Woods sent 

the Planning Commission written notification of Whiteland 

Woods' intention to videotape a meeting scheduled for 

October 9, 1996. On October 8, 1996, Snyder wrote 

informing Whiteland Woods that the Township would not 

 4 
permit videotaping and stating, "Under the circumstances, 

if you decide to undertake the effort and expense of 

bringing video cameras and videotaping equipment to the 

meeting you must do so at your own risk . . . ." The same 

day, the township's Board of Supervisors, following the lead 

of the Planning Commission, enacted Resolution 96-10 

banning the use of video recording devices at meetings of 

the Board of Supervisors. Resolution 96-10 provided in 

part: "The following regulations shall govern the use of 

electrical/mechanical recording equipment during public 

meetings of the Board: . . . (c) Only audio recording or 

stenographic recording equipment may be used i.e. no video 

recording equipment shall be permitted . . . ." 

Representatives of Whiteland Woods brought video 

recording equipment to the Planning Commission's October 

9, 1996 meeting, but Officer John Curran of the West 

Whiteland Township Police Department informed Whiteland 

Woods' representatives they could not make a video 

recording of the meeting. Accordingly, Whiteland Woods left 

the camera facing the wall and made no videotape of the 

meeting. 

On October 14, 1996, Whiteland Woods filed suit in the 

Court of Common Pleas of Chester County, seeking 

injunctive relief and relief under the Pennsylvania

Declaratory Judgments Act, 42 Pa. Cons. Stat. Ann. 

S 7531-41 (West 1998), for violating the Sunshine Act, 65 

Pa. Stat. Ann. S 271-86. Whiteland Woods also sought a 

preliminary injunction barring the Township from enforcing 

the two resolutions. On October 16, 1996, the Township, 

through counsel, wrote to the Court of Common Pleas

conceding the Township could not enforce either resolution, 

citing Hain v. Board of Sch. Directors, 641 A.2d 661, 663-64 

(Pa. Commw. Ct. 1994) (holding that the Sunshine Act 

requires Pennsylvania government agencies to permit

videotaping of their meetings). The Township defendants 

waived their right to a hearing on the preliminary 

injunction and the Court of Common Pleas on October 17 

enjoined the Township from enforcing or attempting to 

enforce the two resolutions or any other resolutions 

prohibiting the videotaping of public meetings. The Board of 

Supervisors and Planning Commission complied with the 

 5 
injunction and did not try to enforce the resolutions. In 

fact, Whiteland Woods has videotaped every Board of

Supervisors meeting since October 22, 1996. 

Whiteland Woods then sought additional relief, filing a 

suit in the Court of Common Pleas for Chester County on 

November 13, 1996 for alleged violations of the First and 

Fourteenth Amendments under 42 U.S.C.A. S 1983 (West 

1994), the Pennsylvania Constitution, and Pennsylvania's 

Sunshine Act. The complaint sought damages in excess of 

$2,100,000 and attorney's fees.1 The Township removed the 

case to federal court and filed a third-party complaint 

against Snyder, alleging that he advised the Commission 

that it legally could adopt the resolution barring 

videotaping. The Planning Commission rescinded its 

resolution on December 11, 1996; the Board of Supervisors 

rescinded Resolution 96-10 on December 18, 1996. 

The District Court granted summary judgment on behalf 

of the Township defendants on the S 1983 claims. The court 

held the ban was not a violation of the First Amendment 

because it was a reasonable time, place, and manner

restriction and dismissed the Fourteenth Amendment claim 

because the Township's conduct did not constitute a

substantive due process violation. The court also 

determined that plaintiff 's request for injunctive relief was 

moot. After disposing of the federal claims, the District 

Court declined to exercise supplemental jurisdiction over 

plaintiff 's state law claims or the Township's claim against 

Snyder. See Whiteland Woods v. Township of West 

Whiteland, No. 96-CV-8086, 1997 WL 653906, at *4-*8

(E.D. Pa. Oct. 21, 1997). 

II 

The District Court had federal question jurisdiction under 

28 U.S.C. S 1331. We have jurisdiction under 28 U.S.C. 

S 1291. We exercise plenary review of a grant of summary 

_________________________________________________________________ 

1. Initially, Whiteland Woods also sought relief based on the failure of 

the 

Board of Supervisors and Planning Commission to rescind promptly the 

unenforceable resolutions. The District Court rejected that theory and 

Whiteland Woods does not press it on appeal. 

 6 
judgment. See Wicker v. Consolidated Rail Corp. , 142 F.3d 

690, 696 (3d Cir. 1998). We view all evidence and draw all 

inferences therefrom in the light most favorable to the nonmoving party and grant summary judgment if no 

reasonable jury could find for the non-moving party. See 

Sameric Corp v. City of Philadelphia, 142 F.3d 582, 590 (3d 

Cir. 1998). 

III 

A 

The primary issue on appeal is whether there is a federal 

constitutional right to videotape public meetings of a 

township planning commission when other effective means 

of recording the proceedings are available. "It is now well 

established that the Constitution protects the right to 

receive information and ideas." Stanley v. Georgia, 394 U.S. 

557, 564 (1969). Because a "major purpose of[the First] 

Amendment was to protect the free discussion of 

governmental affairs," Globe Newspaper v. Superior Ct., 457 

U.S. 596, 604 (1982) (internal quotation marks omitted), 

the public and press have the right to attend certain types 

of governmental proceedings. See, e.g., id. at 603 (criminal 

trials); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 

1067-1070 (3d Cir. 1984) (civil trials). 

We have no hesitation in holding Whiteland Woods had a 

constitutional right of access to the Planning Commission 

meeting on October 9, 1996. Whether the public has a First 

Amendment right of access to a particular government 

proceeding depends on "two complementary 

considerations." Capital Cities Media, Inc. v. Chester, 797 

F.2d 1164, 1174 (3d Cir. 1986). First, "because a tradition 

of accessibility implies the favorable judgment of 

experience," we must consider "whether the place and 

process has historically been open to the press and general 

public." Id. (quoting Press-Enterprise Co. v. Superior Court, 

478 U.S. 1, 8 (1986)) (internal quotation marks omitted). 

Second, we evaluate "whether public access plays a 

significant positive role in the functioning of the particular 

process in question." Id. In the context of judicial 

 7 
proceedings, we have identified six factors pertinent to the 

application of the second prong: 

 [1] promotion of informed discussion of governmental 

 affairs by providing the public with the more complete 

 understanding of the judicial system; [2] promotion of 

 the public perception of fairness which can be achieved 

 only by permitting full public view of the proceedings; 

 [3] providing a significant community therapeutic value 

 as an outlet for community concern, hostility and 

 emotion; [4] serving as a check on corrupt practices by 

 exposing the judicial process to public scrutiny;[5] 

 enhancement of the performance of all involved; and[6] 

 discouragement of perjury." 

United States v. Simone, 14 F.3d 833, 839 (3d Cir. 1993) 

(bracketed numbers in original). 

Public access to Township Planning Commission 

Meetings is guaranteed by the Pennsylvania Municipalities 

Planning Code of 1968 S 209(10), 53 Pa. Stat. Ann. 

S 10209(10) (West 1998), and by the Sunshine Act of 1986, 

53 Pa. Stat. Ann. SS 271-86, see Moore v. Township of 

Raccoon, 625 A.2d 737, 740 (Pa. Commw. Ct. 1993). 

Although the Planning Commission serves in an advisory 

capacity only, see Heck v. Zoning Hearing Bd. , 397 A.2d 15, 

19 (Pa. Commw. Ct. 1979), "[t]he General Assembly . . . 

intended that planning commissions play an active role in 

all aspects of municipal development and land use." Moore, 

625 A.2d at 739. Public access to the Commission's 

meetings complies with the standards set forth in Capital 

Cities and advances the interests identified in Simone. 

Public awareness of land use matters and the perception of 

fairness are fostered by the presence of affected members of 

the township at Commission meetings. Participants in these 

meetings, whether members of the Commission or 

witnesses providing testimony, are put on notice that their 

actions will be evaluated by the community. Consequently, 

we believe the Planning Commission meetings are precisely 

the type of public proceeding to which the First Amendment 

guarantees a public right of access. 

But the public's right of access is not absolute. In holding 

that a criminal trial may not be completely closed to the 

public, the Supreme Court emphasized, 

 8 
 [O]ur holding today does not mean that the First 

 Amendment rights of the public and representatives of 

 the press are absolute. Just as a government may 

 impose reasonable time, place, and manner restrictions 

 upon the use of its streets in the interest of such 

 objectives as the free flow of traffic, so may a trial 

 judge, in the interest of the fair administration of 

 justice, impose reasonable limitations on access to a 

 trial. "[T]he question in a particular case is whether 

 that control is exerted so as not to deny or

 unwarrantedly abridge . . . the opportunities for the 

 communication of thought and the discussion of public 

 questions immemorially associated with resort to 

 public places." 

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 

n.18 (1980) (plurality opinion) (quoting Cox v. New

Hampshire, 312 U.S. 569, 574 (1941)) (citations omitted); 

see also id. at 600 (Brennan, J., concurring); Globe 

Newspaper, 457 U.S. at 607 n.17. The Supreme Court also 

found no constitutional violation in the denial of a press 

request for access to county jail facilities for the purpose of 

investigating conditions in the jail, noting it had"never 

intimated a First Amendment guarantee of a right of access 

to all sources of information within government control" 

and that the "undoubted right to gather news . . . affords 

no basis for the claim that the First Amendment compels 

others--private persons or governments--to supply 

information." Houchins v. KQED, Inc., 438 U.S. 1, 9, 11 

(1978) (plurality opinion). Thus, the First Amendment does 

not require unfettered access to government information. 

The District Court analyzed Whiteland Woods' First 

Amendment claim under the traditional public forum 

doctrine.2 See Whiteland Woods, 1997 WL 653906, at *6. 

_________________________________________________________________ 

2. The government's ability to restrict speech is limited in speech fora. 

 The Court has identified three types of fora: the traditional 

public 

 forum, the public forum created by government designation, and the 

 nonpublic forum. Traditional public fora are defined by the 

objective 

 characteristics of the property, such as whether, by long tradition 

or 

 by government fiat, the property has been devoted to assembly and 

 debate. . . . 

 9 
The Court of Appeals for the Eleventh Circuit has also 

analyzed prohibitions on recordings of public proceedings 

under standards similar to those applied to time, place, and 

manner restrictions on speech in a public forum. See 

Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) 

(per curiam) (denying summary judgment to defendants for 

prohibiting audio recording of the Alabama Supreme Court 

Advisory Committee on Child Support Guidelines because 

plaintiffs alleged a non-content-neutral prohibition); United 

States v. Hastings, 695 F.2d 1278, 1282 (11th Cir. 1983) 

(upholding prohibition on videotaping, photographing, and 

radio broadcasting in the courtroom). In contrast, the 

_________________________________________________________________ 

 Designated public fora, in contrast, are created by purposeful 

 governmental action. The government does not create a designated 

 public forum by inaction or by permitting limited discourse, but 

only 

 by intentionally opening a nontraditional public forum for public 

 discourse. . . . 

 Other government properties are either nonpublic fora or not fora 

 at all. 

Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998) 

(citations, internal quotation marks, and alterations omitted). Time, 

place, and manner restrictions on speech in a public forum are 

permissible "provided [1] the restrictions are justified without reference 

to the content of the regulated speech, [2] that they are narrowly 

tailored 

to serve a significant governmental interest, and[3] that they leave open 

ample alternative channels for communication of the information." Ward 

v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation 

marks omitted). Restrictions on speech in a non-public forum must be 

reasonable and content-neutral. See Arkansas Educ. Television Comm'n, 

523 U.S. at 677-78. 

In addition, the Supreme Court has discussed "limited" public fora, 

which are designated for expression, but only on limited topics. See, 

e.g., 

Rosenberger v. Rector and Visitors of Univ., 515 U.S. 819, 829 (1995). 

Although there is some uncertainty whether limited public fora are a 

subset of designated public fora or a type of nonpublic fora, see 

Summum v. Callaghan, 130 F.3d 906, 914-15 (10th Cir. 1997) 

(discussing cases), we have generally applied to limited public fora the 

constitutional requirements applicable to designated public fora. See 

Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 

F.3d 

242, 248-55 (3d Cir. 1998). 

 10 
Courts of Appeals for the Seventh and Second Circuits have 

required only that restrictions on videotaping or 

audiotaping be content-neutral and reasonable, the 

standards applied to speech in a nonpublic forum. See 

United States v. Kerley, 753 F.2d 617, 620-21 (7th Cir. 

1985) (upholding exclusion of television cameras from 

criminal trial); United States v. Yonkers Bd. of Educ., 747 

F.2d 111, 114 (2d Cir. 1984) (upholding ban on audiotape 

recording of civil trial). 

We are not convinced that forum analysis is necessary to 

resolve such restrictions on the right of access. 

Traditionally, the speech forum doctrine applies to

"expressive" or "speech" activity. See Perry Educ. Ass'n v. 

Local Educators Ass'n, 460 U.S. 37, 45 (1983) (discussing 

a public forum as a place for "expressive activity"); Brody v. 

Spang, 957 F.2d 1108, 1117 (3d Cir. 1992) ("The Supreme 

Court has adopted a framework of forum analysis to assess 

whether a government entity must permit speech or 

expressive activity on its property."). Whiteland Woods does 

not allege the Township interfered with its speech or other 

expressive activity. Rather, the alleged constitutional 

violation consisted of a restriction on Whiteland Woods' 

right to receive and record information. In a similar context, 

the Court of Appeals for the Second Circuit found forum 

analysis inapplicable to CNN's attempt to televise a libel 

trial: 

 [I]t has never been suggested that there is a link 

 between the First Amendment interest that a litigant 

 has in his trial as a "form of expression" and the right 

 that the public may have to view that expression on 

 television. Whatever public forum interest may exist in 

 litigation, that interest is clearly a speaker's interest, 

 not an interest in access to the courtroom. Because the 

 ability of neither General Westmoreland nor CBS to 

 express views at trial is altered by the presence or 

 absence of television cameras, CNN's public forum 

 argument is, by itself, inapposite. 

Westmoreland v. Columbia Broadcasting Sys., Inc. , 752 F.2d 

16, 21-22 (2d Cir. 1984). Westmoreland was decided three 

days after Yonkers Board of Education, which, as noted, 

evaluated a ban on audio recording using criteria similar to 

 11 
those governing restrictions on expressive speech in a 

nonpublic forum. See 747 F.2d at 114 (upholding the ban 

because it was content-neutral and reasonable). Although 

the two panels applied somewhat different tests to the 

similar questions before them, their analyses are 

consistent. The critical question regarding a content-neutral 

restriction on the time, place, or manner of access to a 

government proceeding is whether the restriction 

meaningfully interferes with the public's ability to inform 

itself of the proceeding: that is, whether it limits the 

underlying right of access rather than regulating the 

manner in which that access occurs. 

In this case, Whiteland Woods' right of access to the 

October 9 Planning Commission meeting was not 

meaningfully restricted by the ban on videotaping. The 

Township did not curtail Whiteland Woods' ability to 

express its views before the Planning Commission or to 

compile an accurate record of the proceedings. Nor did it 

prohibit interested parties, reporters, or members of the 

public from attending the meetings or limit the gathering of 

information by means other than by videotaping. Spectators 

were free to take notes, use audio recording devices, or 

even employ stenographic recording. Nothing in the record 

suggests videotaping would have provided a uniquely

valuable source of information about Planning Commission 

meetings. The First Amendment does not require states to 

accommodate every potential method of recording its

proceedings, particularly where the public is granted 

alternative means of compiling a comprehensive record. See 

Combined Communications Corp. v. Finesilver, 672 F.2d 

818, 821 (10th Cir. 1982) (upholding ban on television 

coverage of court-ordered negotiations over electoral 

redistricting where members of the press were permitted to 

attend the meetings and take notes); Garrette v. Estelle, 556 

F.2d 1274, 1279 (5th Cir. 1977) (upholding prison's

prohibition on filming execution because there were other 

methods of informing the public of the execution); Johnson 

v. Adams, 629 F. Supp. 1563, 1564-65 (E.D. Tex. 1986) 

(holding county commissioners may ban video recording of 

meetings where audiotaping was permitted). To put it 

another way, plaintiff has failed to demonstrate an essential 

nexus between the right of access and a right to videotape 

 12 
the Planning Commission proceedings. See Westmoreland, 

752 F.2d at 23 ("There is a long leap . . . between a public 

right under the First Amendment to attend trials and a 

public right under the First Amendment to see a given trial 

televised."). Accordingly, we believe Whiteland Woods has 

failed to demonstrate any deprivation of its First 

Amendment rights. 

Whiteland Woods relies primarily on Cable News 

Network, Inc. v. American Broadcasting Companies, Inc., 

518 F. Supp. 1238 (N.D. Ga. 1981), in which the court 

considered restrictions on the press coverage of presidential 

activities. When only limited numbers of media 

representatives could be admitted to a given event, the 

Reagan administration admitted a media "pool" including a 

single television camera crew, which shared its feed with 

others seeking to cover the event. Traditionally, the pool 

representative had rotated among the three established 

television networks: ABC, CBS, and NBC. When CNN 

sought to be included in the rotation, the administration 

announced that television representatives would be banned 

from pooled coverage unless the four networks agreed 

among themselves to a pool rotation system. In striking 

down this restriction, the court found that television 

coverage of these events had traditionally been permitted, 

that such coverage provided information qualitatively 

different from that available through print media, and that 

the administration's motive was to avoid designating 

members of the pool rather than terminate press coverage. 

See id. at 1244-45. Because none of these factors is present 

here, we believe Cable News Network is inapposite.3

We conclude that Whiteland Woods' right of access to 

Planning Commission meetings did not create a federal 

constitutional right to videotape the meetings. Whiteland 

Woods was allowed to attend all the meetings of the

Planning Commission, including the October 9 session, and 

_________________________________________________________________ 

3. Whiteland Woods also cites Maurice River Township Bd. of Educ. v. 

Maurice River Township Teachers Ass'n, 455 A.2d 563 (N.J. Super. Ct. 

Ch. Div. 1982) (holding that the public had the right to videotape school 

board meetings). But that decision was based on New Jersey common 

law, not the First Amendment. See id. at 564. 

 13 
to compile a full record of the proceedings, whether by 

written and stenographic notes or audiotaping. Therefore, 

we believe the restriction on videotaping did not violate the 

First Amendment. 

B 

Whiteland Woods also claims the Township violated its 

Fourteenth Amendment substantive due process rights

when Officer Curran informed its representatives they could 

not videotape the October 9, 1996 meeting. Whiteland 

Woods does not base its claim on an alleged infringement 

of its fundamental rights under the First Amendment but 

instead on "what is arguably the most frightening and 

egregious abuse of governmental power which is the illegal 

deprivation of liberty by a municipal government through 

the raw use of its police force." (Appellant's Br. at 26.) 

We have recently reviewed the substantive limitations 

imposed by the due process clause on executive action 

such as police conduct: 

 "The touchstone of due process is the protection of the 

 individual against arbitrary action of government." . . . 

 [W]here abusive action by a member of the executive 

 branch is alleged, "only the most egregious official 

 conduct can be said to be arbitrary in the 

 constitutional sense." To generate liability, executive 

 action must be so ill-conceived or malicious that it 

 "shocks the conscience." 

Miller v. City of Philadelphia, 174 F.3d 368, 374-75 (3d Cir. 

1999) (quoting Wolff v. McDonnell, 418 U.S. 539 (1974); 

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) 

(citation and internal quotation marks omitted)). The 

District Court found that this standard had not been met: 

"The police officer was requiring compliance with a dulyenacted resolution the Planning Commission believed was 

in the best interest of the public . . . . [A] police officer's 

verbal instruction to comply with the law does not, without 

more, amount to `arbitrary action of government.' "

Whiteland Woods, 1997 WL 653906, at *7 (quoting Wolff, 

418 U.S. at 558). We agree. In requiring compliance with 

the resolution, Officer Curran was acting in a rational 

 14 
manner. Contending that violation of the resolution was not 

a criminal offense, Whiteland Woods suggests that if the 

Township thought plaintiff's actions were illegal, "the 

appropriate thing to do would have been to seek redress 

through the Court--not through enforcement by an armed 

policeman." Plaintiff cites no authority for this position, nor 

does it explain how Curran's conduct rises to the level of a 

substantive due process violation. 

IV 

For the foregoing reasons, we will affirm the grant of 

summary judgment. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15