Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-30-1994
Brown et al. v. Borough of Mahaffrey, et al.
Precedential or Non-Precedential:
Docket 93-3063
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"Brown et al. v. Borough of Mahaffrey, et al." (1994). 1994 Decisions. Paper 148.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-3063
ANDREW D. BROWN and ABUNDANT LIFE MINISTRIES,
Appellants
v.
BOROUGH OF MAHAFFEY, PENNSYLVANIA, a municipal corporation,
JOHN M. BAKAYSA, PAUL MAHAFFEY, FRANK ELLING, JOHN BRACKEN,
KIMBERLY STRUBLE, POLLY BELL, KENNETH BEE,
RODGER JOHNSON and FRANCIS P. RUFFLEY,
Appellees
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 93-40J)
Argued: July 25, 1994
Before: BECKER and ALITO, Circuit Judges
and BRODY, District Judge*
(Filed: September 30, 1994)
JOSEPH E. BUCKLEY, JR. (Argued)
100 Main Street
Brookville, PA 15825
Attorney for Appellants
PAMELA G. COCHENOUR (Argued)
ROBERT E. DAPPER
Pietragallo, Bosick & Gordon
38th Floor, One Oxford Center
Pittsburgh, PA 15219
Attorney for Appellees
* Hon. Anita B. Brody, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
BRODY, District Judge,
Plaintiffs, a Pentecostal minister and his non-profit
incorporated ministry, appeal the grant of summary judgment on
their claims under 42 U.S.C. §§ 1983 and 1985(3) alleging that a
municipal borough and its council members violated their free
exercise and other rights by intentionally impeding access to
their tent revival meetings. The District Court granted summary
judgment on the Free Exercise count because the plaintiffs had
not introduced sufficient evidence that the Borough's actions
placed a "substantial burden" on plaintiffs' religious exercise.
Because we believe that the pivotal issue in a case alleging
deliberate interference with religious activity is not the extent
of the burden on religious exercise, but instead whether the
defendants intended to impose a burden, we reverse the grant of
summary judgment on the Free Exercise claim, and remand to the
District Court for reconsideration of the record consistent with
our holding.
I.
Taking all inferences to be drawn from the evidence in
a light most favorable to the plaintiffs/appellants, Matsushita
Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 585-589
(1986), the following events can be gleaned from the record
before us.
Plaintiffs Reverend Andrew D. Brown and his Abundant
Life Ministries arranged to conduct Pentecostal tent revival
meetings in the Borough of Mahaffey from August 2-7, 1992. The
plaintiffs had permission to hold the meetings on property owned
by the Penn Central Corporation, which lies adjacent to a
baseball park owned by the Borough called "Scout Park." Scout
Park and the Penn Central property are divided by a dirt road
owned by the Borough. Reverend Brown was also negotiating to
purchase the Penn Central property.
At a Borough council meeting held shortly before the
scheduled revival meetings the council members discussed a
petition to erect a gate separating Scout Park from the Penn
Central property. At the same meeting the council discussed how
to handle plaintiffs' planned revival meetings. See Deposition
of council member Bakaysa. The council summoned Reverend Brown
to the meeting to discuss his plans for the revival. The
discussion escalated into argument. Brown also informed the
council that he was negotiating to purchase the Penn Central
property. Defendant Bakaysa acknowledged that this circumstance
angered the Council members.1 The council members informed
1
The District Court also found that council members
"upbraided Brown with abusive language." This fact does not
appear in the record before us.
Reverend Brown of their intention to erect gates between the
properties. A gate was erected on July 29, 1992.
The parties eventually agreed that the gates would be
opened each evening to accommodate the meetings. The first two
revival meetings occurred without event. At the third meeting,
on Tuesday, August 4, 1992, the plaintiffs found the gates
locked. Attendees of that night's meeting were unable to drive
up to the tent; instead, they were forced to park outside the
gate and walk 100 to 200 feet to reach the tent. Plaintiffs
contend that disabled individuals seeking the Ministry's faith
healing were among the expected attendees, and may have been
deterred from further attendance during the week because of the
difficulty in reaching the tent. Council member Bakaysa
testified that he was aware that disabled individuals were among
the expected worshippers. Council members represented that they
had intentionally locked the gate because of noise and activity
on the site late at night on Monday. Plaintiffs were never
informed of the council members' decision to lock the gate.
After discussion between the parties, the Borough
agreed to open the gate for the rest of the planned meetings; it
did so on Wednesday and Thursday. On Friday, August 7, 1992, the
plaintiffs again encountered a locked gate that they attempted to
break open. Council member Kim Struble came over, and offered to
open the gate; according to the plaintiffs the offer was made in
a mocking manner. The plaintiffs continued to try to break the
gate open. Struble contacted council member Bakaysa who brought
a state police officer to the scene. The dispute was eventually
resolved with Bakaysa and Reverend Brown agreeing that Reverend
Brown would repair the gate, and the Borough promising not to
press vandalism charges.
After the final revival meeting, on August 7, the
plaintiffs who remained behind to clean up and pack the equipment
found their egress blocked by the gate being locked again.
Reverend Brown testified that he had earlier observed council
members and police officers at the gate, and heard pounding at
the gate preceding the time when he discovered the gate locked.
The next morning, the plaintiffs opened the gate by breaking the
bolt with a sledgehammer in order to remove their equipment.
In February, 1993, the Borough bought the Penn Central
Property from Penn Central Corporation. Defendants acknowledge
becoming more motivated to purchase the property after becoming
aware of the plaintiffs' hopes of purchasing the property.
The plaintiffs sued individual council members and the
Borough under federal civil rights laws, 42 U.S.C. §§ 1983 and
1985(3), the Equal Protection Clause of the Fourteenth Amendment,
and Pennsylvania law for damages and injunctive relief, alleging
the following counts: Free Exercise of Religion under the First
Amendment; Freedom of Association under the First Amendment;
Invasion of Privacy under the First and Fourteenth Amendments;
Establishment Clause under the First Amendment; Equal Protection;
a general "constitutional tort" invasion under §§ 1983 and
1985(3); the Pennsylvania Human Relations Act; False
Imprisonment; and Breach of Contract; and Interference with
Prospective Economic Advantage.
The District Court granted summary judgment on all
counts. The plaintiffs appealed the court's holding on
plaintiffs' Free Exercise, Establishment Clause, Equal
Protection, and "constitutional tort" counts.
II.
The core of plaintiffs' Free Exercise contention is
that the Borough manifested hostility towards their religious
activity by intentionally locking the gate to impede access to
the revival meetings. See Appellants' Brief at 11. The Free
Exercise Clause of the First Amendment provides that Congress
"shall make no law . . . prohibiting the free exercise of
[religion]"; at its undisputed minimum this command enjoins
government from intentionally burdening religious worship. Cf.
Grosz v. City of Miami Beach, Florida, 721 F.2d 729, 733-34 (11th
Cir. 1983), cert. denied, 469 U.S. 827 (1984) ("governmental
action violates the Constitution if it is based upon disagreement
with religious tenets or practices, or is aimed at impeding
religion"); see also Robert H. Bork, The Supreme Court and the
Religious Clauses, Proceedings of the National Religious Freedom
Conference of the Catholic League for Religious and Civil Rights
83, 84 (1988) ("The free exercise clause might have been read
simply to prohibit laws that directly and intentionally penalize
religious observance. Instead, [it has] been read to have far
greater breadth and severity."). Indeed, "it was 'historical
instances of religious persecution and intolerance that gave
concern to those who drafted the Free Exercise Clause.'" Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct.
2217, 2226 (1993) (citation omitted). This common understanding
of the Free Exercise Clause has resulted in the circumstance that
"few States would be so naive as to enact a law directly
prohibiting or burdening a religious practice as such."
Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872, 894 (1990) (O'Connor, J. concurring).
The District Court ruled that plaintiffs' Free Exercise
claim failed because "even assuming that plaintiffs' suspicions
about the defendants biases and motivations are true . . . the
plaintiffs have not adduced evidence of a 'substantial burden'",
as required by the Religious Freedom Restoration Act, 42 U.S.C. §
2000. This analysis is inappropriate for a free exercise claim
involving intentional burdening of religious exercise. The
"substantial burden" requirement was developed in the Supreme
Court's free exercise jurisprudence, and codified in the
Religious Freedom Restoration Act, 42 U.S.C. § 2000, in order to
balance the tension between religious rights and valid government
goals advanced by "neutral and generally applicable laws" which
create an incidental burden on religious exercise. See
Employment Division, 494 U.S. at 894 (O'Connor, J. concurring)
("we have respected both the First Amendment's express textual
mandate and the governmental interest in regulation of conduct by
requiring the government to justify any substantial burden on
religiously motivated conduct . . . "). See also Michael W.
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 HARV. L. REV. 1409 (1990). The rare
cases which address acts or laws which target religious activity
have never limited liability to instances where a "substantial
burden" was proved by the plaintiff. See e.g. Lukumi Babalu Aye,
113 S. Ct. 2217. Applying such a burden test to non-neutral
government actions would make petty harassment of religious
institutions and exercise immune from the protection of the First
Amendment. A burden test is only necessary to place logical
limits on free exercise rights in relation to laws or actions
designed to achieve legitimate, secular purposes. Because
government actions intentionally discriminating against religious
exercise a fortiori serve no legitimate purpose, no balancing
test is necessary to cabin religious exercise in deference to
such actions.
Accordingly, the determinative issue for the trial
court on summary judgment was not whether the plaintiffs had
proffered sufficient evidence to create a material issue of fact
regarding the extent of the burden created -- a test which the
plaintiffs fail -- but instead whether there is sufficient
evidence to create a material issue of fact regarding whether the
defendants intentionally impeded the plaintiffs' religious
activity. We therefore remand to the District Court for a
determination, based on consideration of the entire record, of
whether the plaintiff has introduced sufficient evidence on the
issue of intentional targeting to resist summary judgment.
III.
The other issues raised by plaintiffs on appeal
constitute little more than a repackaging of the free exercise
count to fit other constitutional labels. The Establishment
Clause of the First Amendment restricts government capacity to
favor a religion, or religion in general. The plaintiffs contend
that the hostility displayed and the impediments imposed on their
own religious exercise translates into favoritism towards every
other religion. This logic would transform every viable free
exercise action into an Establishment Clause claim. Such a
circumstance finds no support in Establishment Clause
jurisprudence.
A government action is subject to "strict scrutiny"
under the Equal Protection Clause of the Fourteenth Amendment if
it discriminates against a "suspect class," or if it interferes
with a "fundamental right." Kardmas v. Dickinson Public Schools,
487 U.S. 450, 457-58 (1988). The plaintiffs argue that the
violation of their fundamental right to free exercise of religion
constitutes an equal protection violation. However, in order to
maintain an equal protection claim with any significance
independent of the free exercise count which has already been
raised, the plaintiffs must also allege and prove that they
received different treatment from other similarly situated
individuals or groups. City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985); Andrews v. City of Philadelphia, 895
F.2d 1469, 1478 (3d Cir. 1990); Jordan v. Jackson, 15 F.3d 333,
355 (4th Cir. 1994) The plaintiffs have proffered no evidence to
that effect.
In addition to the alleged Free Exercise, Establishment
Clause, and Equal Protection claims, the plaintiffs state a
separate claim under 42 U.S.C. §§ 1983 and 1985 (3) for
"constitutional torts by and of themselves." Brief of Appellants
at 31. The plaintiffs must assert a specific federal
constitutional or statutory right in order to maintain a claim
under the civil rights laws. See Albright v. Oliver, 114 S. Ct.
807, 811 (1994) ("[t]he first step in any [1983] claim is to
identify the specific constitutional right infringed"). The
plaintiffs have asserted several constitutional violations; they
cannot attach a "catch-all" tort claim as a fallback if those
specific constitutional claims fail.
IV.
We will therefore reverse the District Court's grant of
summary judgment on the plaintiffs' free exercise claim and
remand that issue to the District Court for proceedings
consistent with this opinion. We will affirm on all other
counts.