"fixed in amount
and unrelated to the scope of the activities of petitioners or to their
realized revenues." Murdock, 319 U.S. at 113. The issuance of both
permits "is dependent on the payment of a license tax." As such, "it
restrains in advance those constitutional liberties of . . . religion and
inevitably tends to suppress their exercise. . . . On their face they are
a restriction of the free exercise of those freedoms which are protected
by the First Amendment." Id. at 114.
Defendants attempt to distinguish Murdock by pointing to language in
that case that appeared to except "a nominal fee imposed as a regulatory
measure to defray the expenses of policing the activities in question."
Id. at 113-14. Such a nominal fee cannot constitutionally burden
religion. What defendants overlook, however, is that the ordinance in
Murdock was a law of "general applicability." It was "fixed in amount and
unrelated to the scope of the activities of petitioners or to their
realized revenues." Id. at 114. In other words, it applied to all
solicitors, commercial or religious. The permit fee at issue here does
not apply to all possessors of wild animals, but contains categorical
exemptions for specific secular motivations. The legislature has made an
impermissible value judgment. Circuses that possess wild animals for the
entertainment of the public need not pay the fee, but Black Hawk, who
possesses similar animals for religious purposes, must pay the fee. This
negates the persuasive value of the "nominal fee" exception in Murdock.
The state's interest in defraying costs cannot be compelling when it
specifically exempts large categories of persons from the requirement of
paying the fee. Cf. Nat'l Awareness Found. v. Abrams, 50 F.3d 1159, 1167
(2d Cir. 1995) ("The $80 fee is statutorily set and New York is afforded
no discretion in imposing the fee based on speech content.") (emphasis
It must also be reiterated that present ability to pay the permit fee
ignores the fact that, in the Commission's view, Black Hawk is not
entitled to an exemption regardless of the financial strain on his
indisputably limited resources that the fee may create. Black Hawk is
confronted with the loss of animals of paramount spiritual significance
if he cannot muster the money to pay whatever fee is imposed. Viewed in
this light, the permit fee system imposes a "religious hardship."
Analysis of least restrictive alternatives is unnecessary because
defendants cannot demonstrate a compelling interest in refusing to grant
a religious exemption. In Sherbert, the Court offered a definition of
compelling interest: "It is basic that no showing merely of a rational
relationship to some colorable state interest would suffice; in this
highly sensitive constitutional area, `(o)nly the gravest abuses,
endangering paramount interest, give occasion for permissible
limitation.'" 374 U.S. at 406 (quoting Thomas v. Collins, 323 U.S. 516,
530 (1945)); see also Wisconsin v. Yoder, 406 U.S. 205, 212 (1972) ("Only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion.").
Defendants assert that Pennsylvania's interest in promoting the welfare
and prosperity of wildlife populations is a compelling state interest.
Also, they claim, uniform payment of the permit fee by Black Hawk and
other individuals is important for the "financial integrity" of the Game
Commission and its ability to perform its mission.
However, the Commission is obliged to grant exemptions to various
permit holders, including zoos and circuses, and
educational exhibits of wildlife. The Supreme Court has said that "a law
cannot be regarded as protecting an interest `of the highest order' . .
. when it leaves appreciable damage to that supposedly vital interest
unprohibited." Lukumi, 508 U.S. at 547 (quoting Florida Star v. B.J.F.,
491 U.S. 524, 541 -42 (Scalia, J., concurring in part and concurring in
The facts also make clear that any actual harm suffered by the
Commission and the State's interest in wildlife management will be
slight. The Commission's annual revenues are more than $60 million, and
permit fees make up less than one percent of that figure. (Pl. Stat. of
Material Facts, Dkt. Entry 58, at ¶¶ 55-57.) Moreover, this is the
only request for an exemption that the Commission has received since
1995. (Id. at ¶ 59.) This case is not analogous to the need for
uniform collection of sales and Social Security taxes. See Hernandez v.
Comm'r, 490 U.S. 680 (19 89); Texas Monthly v. Bullock, 489 U.S. 1
(1989). The fiscal integrity of the Game Commission would not be
undermined by allowing religious exemptions any more than it is
undermined by statutory exclusions for zoos and circuses.
Also, Black Hawk has met the substantive permit requirements. But for
the fee, the Commission would have granted him a permit for the bears.
Black Hawk's possession of the bears does not conflict with the
Commission's goal of maintaining a wild bear population of at least
8,000. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶ 61.)
Indeed, Black Hawk's bears could not be returned to the wild in any case
as they have been declawed and have lived in captivity their entire
lives. Their captivity is not inconsistent with the Commission's concern
of overpopulation and increased contact between wild bears and humans.
The defendants have not shown a compelling reason for its decision to
deny an exemption in this case. On the contrary, it appears that
maintaining the bears, who have been in captivity their entire lives,
qualifies as an "extraordinary circumstance" that would not defeat the
state's interest in sound game and wild life management.
In short, Pennsylvania does not have a compelling interest in requiring
Black Hawk pay the permit fee. Therefore, the denial of a religious
exemption to the permit fee requirement, where a system of individualized
exemptions exists, violates the Free Exercise clause of the First
C. Proper Defendants
In order to be personally liable under § 1983, the defendants must
have participated in violating Black Hawk's rights, directed others to
violate them, or had knowledge of and acquiesced in subordinates'
violations. See Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.
1995) ("In order to render [defendant] personally liable under section
1983, the [plaintiffs] must show that he participated in violating their
rights, or that he directed others to violate them, or that he, as the
person in charge . . . had knowledge of and acquiesced in his
subordinates' violations."). In this case, Black Hawk's Amended Complaint
defines his claim as follows: "Defendants' actions in denying Black Hawk
a religious exemption from the permit fee violated his right to the free
exercise of religion guaranteed by the First and Fourteenth Amendments to
the United States Constitution." (Amended Complaint at ¶ 21.) Thus,
those persons who participated in the decision to deny Black Hawk a
religious exemption may be subject to liability for damages. Defendants
that Overcash and Littwin were personally involved in the
decision to deny Black Hawk an exemption. (Def. Stat. of Facts, Dkt.
Entry 53, at ¶ 44.) They dispute, however, that Ross, Merluzzi, and
Hambley can be held liable.
Ross was the Director of the Pennsylvania Game Commission. The record
shows that he was aware of Black Hawk's request for an exemption and
aware of the decision to deny it. Under the Code, Ross has the power to
grant such an exemption. 34 Pa. C.S. § 2901(d). The Third Circuit has
held that, in the case of supervisor liability, "[t]he necessary
involvement can be shown in two ways, either `through allegations of
personal direction or of actual knowledge and acquiescence,' or through
proof of direct discrimination by the supervisor." Andrew s v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In this case, Ross
had "actual knowledge" of the request and denial of the exemption and
acquiesced in the decision. State Representative McCall wrote to Ross and
Littwin regarding Black Hawk's situation. Ross received e-mails from
Native Americans requesting an exemption for Black Hawk, and he directed
Littwin to respond to Black Hawk's request. Ross had "actual knowledge"
and acquiesced in the decision to deny Black Hawk an exemption and,
therefore, was sufficiently involved to be held liable.
Defendants Merluzzi and Hambley, however, did not participate in the
decision to deny Black Hawk an exemption. Merluzzi was the Wild life
Conservation Officer who dealt directly with Black Hawk with respect to
the permits. Black Hawk points to the fact that Merluzzi twice failed to
forward his request for an exemption up the chain of command. He has not
shown, however, that the delay in forwarding the request for an exemption
some how caused his request to be denied. While Defendant Overcash
consulted with Merluzzi regarding Black Hawk's request for an exemption,
there is no showing that Overcash relied on Merluzzi. Finally, while
Merluzzi filed a citation against Black Hawk for failing to pay the
permit fee, Black Hawk does not claim that the filing of criminal charges
violated his First Amendment rights.
Defendant Hambley was Merluzzi's supervisor in the regional office of
the Game Commission. Merluzzi discussed Black Hawk's request for an
exemption from payment of the permit fee with Hambley, at which time
Hambley advised Merluzzi that there is no exemption for Native
Americans. He also instructed Merluzzi to file criminal charges against
Black Hawk for failure to pay the permit fee. There is no evidence,
however, that Hambley was involved "in denying Black Hawk a religious
exemption," the actionable conduct asserted in the Amended Complaint.
Neither Merluzzi nor Hambley "participated in violating" Black Hawk's
rights, nor did they "direct others to violate them." They were not
involved in the actual decision to deny Black Hawk a religious exemption
from the permit fee requirement. At most, Merluzzi provided information
on which Overcash and Littwin acted. Therefore, the Court will grant
summary judgment for Merluzzi and Hambley.
D. Qualified Immunity
The doctrine of qualified immunity protects government officials
"performing discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity is not
available for claims of equitable relief. Wood v. Strickland, 420 U.S. 308,
314 n. ¶ (1975) ("[I]mmunity from damages does not ordinarily bar
equitable relief as well."). Defendants argue that they are entitled to
qualified immunity as to Black Hawk's claim for damages because it was
not "clearly established" that denial of a fee exemption would violate
the First Amendment.
In Anderson v. Creighton, 483 U.S. 635, 640 (1987) the Court delineated
the "clearly established" standard as follows:
The contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. This is not to say
that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness must
As more recently articulated in Hope v. Pelza, 122 S.Ct. 2508, 2516
(200 2), "officials can . . . be on notice that their conduct violates
established law even in novel factual circumstances." There is no need
for prior cases involving "`fundamentally similar'" or "`materially
similar'" facts. Id. The "salient question" is whether the state of the
law at the time of the challenged conduct gave defendants "fair warning"
that their action was unconstitutional. Id.
Consistent with Supreme Court precedent, the Third Circuit has adopted
a "broad view of what constitutes an established right of which a
reasonable person would have known." Burns v. County of Cambria,
971 F.2d 1015, 1024 (3d Cir. 1992). There need not be an exact match
between the facts of the current case and a previous case. To require
such a correspondence would allow government officials "one
liability-free violation of a constitutional or statutory requirement."
Id. at 1024 (quoting People of Three Mile Island v. Nuclear Regulatory
Comm'rs, 747 F.2d 139, 144-45 (3d Cir. 1984)).
Defendants admit that they did not consider constitutional precedents
when they decided to deny Black Hawk an exemption. (Pl. Stat. of Material
Facts, Dkt. Entry 58, at ¶ 68.) Yet, the standard for qualified
immunity is an objective one. "The ultimate issue is whether, despite the
absence of a case applying established principles to the same facts,
reasonable officials in the defendants' position at the relevant time
could have believed, in light of what was in the decided case law, that
their conduct would be lawful." Good v. Dauphin County Soc. Servs. for
Children, 891 F.2d 1087, 1092 (3d Cir. 1989). Where the defense of
qualified immunity is asserted, the plaintiff shoulders the initial
burden of showing that the challenged conduct violated a clearly
established constitutional right. Sherwood v. Mulvihill, 113 F.3d 396,
399 (3d Cir. 1997). "The Supreme Court has directed that the right in
question should be defined in a particularized and relevant manner,
rather than abstractly." Doe v. County of Centre, Pennsylvania, 242 F.3 d
437, 454 (3d Cir. 2001). The right in this case is the right of a person
to be exempted from a permit fee to possess wildlife where the wildlife
have spiritual significance and the state has granted exemptions from the
fee for some limited secular reasons.
Black Hawk contends that "fair warning" was afforded by Murdock and
Follett, and that Smith "made clear that it was not reducing the standard
of scrutiny for neutral laws that admitted of individualized exceptions."
(Pl. Brief in Opp. to Def. Summary Judgment Motion, Dkt. Entry 74, at
13.) While acknowledging that this case is not factually similar to any
cited by the parties, Black Hawk asserts that the "nuance fact
differences" are not sufficient to support qualified immunity in this
Far from being mere "nuanced differences," the facts of this case are
not sufficiently alike those found in Murdock or Follett to say that a
reasonable Game Commission official would know that the First Amendment
compelled a permit exception. Both cases involved "substantial burdens,"
not only on the exercise of religious rights, but also on the freedom of
speech and free press. Both Black Hawk and the defendants have argued the
question of whether the permit fee imposes a "substantial burden" on his
First Amendment rights. In this case, a reasonable person could have
construed Murdock, as well as Smith,*fn10 as requiring a plaintiff to
show a "substantial" burden on the exercise of religion, and could have
concluded that the $200 fee did not impose such a burden. Qualified
immunity is warranted where an official, based on the available
information, concludes that the action taken is consistent with
controlling principles. See Good, 891 F.2d at 1092. Because a reasonable
official could have understood that a "substantial burden" was a
prerequisite to a claim that the permit fee was unconstitutional and that
Black Hawk had not shown such a burden, the defendants in this case are
entitled to qualified immunity.
It is also noteworthy that defendants relied upon Murdock's observation
that a nominal fee imposed to defray administrative costs could not
unconstitutionally burden the exercise of religion. 319 U.S. at 113-14. A
reasonable official could conclude that the $200 fee in this case falls
within this category.
Furthermore, while courts have sustained license fees on the nominal
fee basis, see, e.g., National Awareness Foundation, supra, Black Hawk
has not cited any case that considered the "individualized assessment"
approach of Smith and City of Newark in the context of fee exemptions. And
those cases that have considered either individualized assessments or
categorical exemptions for secular-based reasons have dealt with obvious
burdens on the exercise of religion, for example, requiring the plaintiff
to do something proscribed by his or her religion like removal of facial
hair in City of Newark. Here, by way of contrast, Black Hawk's payment of
the fee does not violate religious tenets. He is not being compelled to
do something proscribed by his religious beliefs, an obvious burden on
the exercise of religion. This case involves application of the
individualized exemption analysis suggested in Smith to an incidental
burden on the exercise of religion. Black Hawk has not cited any
controlling precedent that would have afforded fair warning to the
defendants that cases such as City of Newark were applicable here.*fn11
While I believe that City of Newark is applicable in this context, I
cannot say that this conclusion is so obvious that a reasonable Game
Commission official would have arrived at the same conclusion.
Accordingly, defendants' assertions of qualified immunity will be
Judgment will be granted to defendants as to Black Hawk's damages
claims, and to
defendants Frederick Merluzzi and Barry Hambley as to all
claims. Summary judgment will be granted to Black Hawk on his section
1983 claim for equitable relief. Defendants shall be enjoined from
requiring Black Hawk to pay a permit fee for possession of his two black
An appropriate Order follows.
NOW, THIS 25th DAY OF SEPTEMBER, 2002, for the reasons set forth in the
foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' Motion for Summary Judgment (Dkt. Entry
50) is GRANTED IN PART and DENIED IN PART.
A. Defendants' motion is GRANTED as to the claim of
B. Defendants' motion is GRANTED as to Frederick
Merluzzi and Barry Hambley.
C. Defendants' motion is DENIED as to all other claims.
2. Plaintiff's Motion for Partial Summary Judgment
(Dkt. Entry 56) is GRANTED IN PART and DENIED IN
A. Plaintiff's Motion is DENIED as to the claims for