McTernan v. York

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

4-27-2009

McTernan v. York
Precedential or Non-Precedential: Precedential

Docket No. 07-4437

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 07-4437
(Consolidated with Nos. 07-4438 and 07-4439)
_____________

JOHN McTERNAN,
Appellant

v.

CITY OF YORK, PENNSYLVANIA;
MAYOR JOHN S. BRENNER, in his official capacity;
POLICE COMMISSIONER MARK L. WHITMAN,
in his official capacity;
SERGEANT RICHARD BARTH, York Police Department,
in his official and individual capacities
_________

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-02132)
District Judge: Honorable John E. Jones, III
__________

Argued October 23, 2008
 Before: RENDELL, and SMITH, Circuit Judges,
and POLLAK,* District Judge.

(Filed: April 27, 2009)

Dennis E. Boyle, Esq.
Randall L. Wenger, Esq. [ARGUED]
Suite 200
4660 Trindle Road
Camp Hill, PA 17011-0000
Counsel for Appellants
John McTernan; John R. Holman; Edward D. Snell

Donald B. Hoyt, Esq.
Blakey, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401

__________________

*Honorable Louis H. Pollak, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.

Frank J. Lavery, Jr., Esq.
James D. Young, Esq. [ARGUED]

2
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
P. O. Box 1245
Harrisburg, PA 17108
Counsel for Appellees
City of York, Pennsylvania;
Mayor John S. Brenner, in His Official Capacity;
Police Commissioner Mark L. Whitman, in His Official
Capacity; and Sergeant Richard Barth
__________

OPINION OF THE COURT
__________

RENDELL, Circuit Judge.

Appellant John McTernan appeals from the District
Court’s grant of summary judgment against him and dismissal
of his Monell claims for municipal liability in this action
pursuant to 42 U.S.C. § 1983; Monell v. New York City Dep’t of
Social Servs., 436 U.S. 658 (1978).

I.

McTernan is a pro-life advocate who regularly speaks to
pregnant women as they enter Planned Parenthood of Central
Pennsylvania (“Planned Parenthood”), a reproductive health
clinic (hereinafter “Clinic”) in York, Pennsylvania. His
complaint challenges a restriction imposed by police,
specifically Sergeant Barth, on his ability to walk in an alley
adjacent to the Clinic to speak to clients. Sergeant Barth, a

3
member of the City of York police department, is one of several
officers assigned to overtime detail at the Clinic under a contract
between Planned Parenthood and the City. McTernan Appendix
(“M.A.”) 182. To dissuade pregnant women from undergoing
an abortion, McTernan emphasizes the sanctity of the fetus,
distributes pro-life literature, and discusses alternatives to, and
the health risks of, abortion. McTernan's activities emanate
from deeply rooted Christian religious beliefs. M.A. 220.

A.

We are presented with two other appeals by protesters
with complaints similar to McTernan’s (Holman v. City of York,
No. 07-4438; and Snell v. City of York, No. 07-4439). Each of
the three appellants (collectively “appellants” or “plaintiffs”)
sued individually complaining of restrictions on his First
Amendment rights of free speech, assembly, and religious
expression. Additionally, Snell and Holman have complained
that their arrests for activity outside the Clinic violated their
Fourth Amendment rights. While certain facts as stated in the
three appeals are similar, the claims of each were separately
asserted in, and decided by, the District Court. We will
therefore treat each case separately, while noting certain
similarities.

McTernan’s case was filed first, and we will deal herein
with the common issues in depth, while the other opinions may
incorporate certain principles relied upon herein by reference.

All three complaints contain certain common allegations:

4
(1) Plaintiffs attempt to dissuade women entering the Clinic
from undergoing an abortion;

(2) Deeply rooted Christian beliefs animate plaintiffs’ activities
at the Clinic;

(3) Encounters between plaintiffs, other protesters, and clients
are generally peaceful, and no violent altercations have
occurred;

(4) On multiple occasions, officers assigned overtime detail at
the Clinic have restricted plaintiffs’ access to Rose Alley, a
public street adjacent to the Clinic; and

(5) Access restrictions were adopted at Planned Parenthood’s
behest, and under “color and pretense” of the customs and
policies of the City of York.

There was extensive discovery, and the facts as we
recount them here are based on deposition testimony. Except
where noted to the contrary, the facts are not disputed. These
cases are alike in that they paint a picture, aided in part by
DVDs submitted by each of the three plaintiffs, very different
from most other abortion clinic protest cases. Here, the police
focus was not on the disruption caused by protesters, as such;
rather, the justification for the restrictions on plaintiffs’
activities was grounded in a concern for traffic safety in the
alley abutting the Clinic. Police worried that vehicles traveling
through the alley would collide with advocates congregating
there. The defendants have admitted allegations in plaintiffs’
complaints as to the absence of physical confrontations of the

5
sort that frequently accompany anti-abortion proselytizing.
There is no claim, and absolutely no evidence presented, that
plaintiffs’ activities have sparked violence, endangered clients’
health, or violated clients’ rights to privacy, as in other cases.1

B.

As the physical layout and setting of the Clinic are crucial
to our analysis, we describe both in detail. The Clinic fronts
South Beaver Street in York, Pennsylvania. Two roads run
perpendicular to South Beaver Street on either side of the Clinic
– Hancock Street and Rose Alley. M.A. 180 (map of Clinic
environs). Rose Alley is a public street maintained by the City
of York. M.A. 166. It is approximately 20 feet wide and is
lightly traveled. M.A. 173, 219. A publishing business is
located at the far end of the alley, and its employees, and trucks
making deliveries, use the alley to access the company’s parking
lot. M.A. 173. There is no posted speed limit in Rose Alley, nor
are there signs restricting the direction of travel or the size of
vehicles using the alley. M.A. 133, 245-46. The Clinic owns or
leases a front and a rear parking lot, which are used by Clinic
employees and clients. M.A. 132, 173, 180. The front lot, which
faces South Beaver Street, is adjacent to Rose Alley. M.A. 132,

1
See, e.g., Schenck v. Pro-Choice Network of Western New
York, 519 U.S. 357, 362-63 (1997); Madsen v. Women’s Health
Ctr., 512 U.S. 753, 758 (1994); New York ex. rel. Spitzer v.
Operation Rescue Nat’l, 273 F.3d 184, 192 (2d Cir. 2001); Nat’l
Org. for Women v. Operation Rescue, 37 F.3d 646, 649 (D.C.
Cir. 1994).

6
180. The back lot is situated near the rear entrance of the Clinic
farther down the alley. M.A. 132, 173, 180. Both the front and
rear entrances of the Clinic feature handicap ramps. M.A. 224.2

Protesters may display signs, distribute literature, and
engage patrons on the public sidewalks abutting the front
entrance of the Clinic and running between the front parking lot
and South Beaver Street. M.A. 132, 183; Holman Appendix
(“H.A.”) 295; Snell Appendix (“S.A.”) 165.

Typically, Planned Parenthood personnel, dressed in white
smocks, meet women entering the front lot and escort them
across Rose Alley and over the public sidewalk to Planned
Parenthood’s front entrance. M.A. 219. Other times, clients are
dropped off at the rear entrance of the Clinic. Standing at the
far end of the alley, McTernan attempts to converse with these
women as they enter the Clinic from the rear. M.A. 221.

C.

On June 29, 2005, McTernan and another protester were
standing in Rose Alley when a vehicle swerved sharply towards
them. Believing that the driver had acted deliberately to
intimidate him, McTernan asked Sergeant Barth to charge the
driver. Sergeant Barth did not do so. McTernan maintains that
Sergeant Barth minimized the significance of the incident. M.A.
175, 274.

2
The appendix reference at page 224, a DVD proffered by
McTernan, depicts his exchange with Sergeant Barth.

7
 Following the incident on June 29, 2005, police restricted
access to Rose Alley. On September 28, 2005, Sergeant Barth
advised protesters and Planned Parenthood escorts outside the
Planned Parenthood facility, including McTernan, that they were
prohibited from standing or lingering in, or “walking aimlessly”
through, Rose Alley. M.A. 165-66, 183, 220, 224. Citing safety
concerns and McTernan’s near-collision on June 29, 2005,
Sergeant Barth informed members of both camps that they
would only be permitted to cross Rose Alley where it intersected
with South Beaver Street. M.A. 165-66, 183. There was no
vehicular traffic in the alley at the time Sergeant Barth
instructed advocates. M.A. 220. Sergeant Barth noted that his
instructions were generally obeyed. M.A. 166.

Sergeant Barth also told McTernan that he could walk
through the alley but had to do so “legally,” in the “correct
way,” and could not “English-walk.” M.A. 220, 224. McTernan
requested that Sergeant Barth define these terms but he declined
to do so. M.A. 220, 224. McTernan then walked up and down
the alley. After doing so, he inquired whether his manner of
walking was legal. M.A. 220, 24. Sergeant Barth informed
McTernan that it was not and threatened to arrest him if he did
so again. M.A. 220, 224. Accordingly, McTernan did not enter
Rose Alley again that day, instead using the public sidewalk in
front of the Clinic to converse with clients. M.A. 174, 221.
After September 28, 2005, McTernan continued his advocacy
outside the Clinic but avoided Rose Alley, without further
incident. M.A. 174, 221.

D.

8
 McTernan filed suit in the United States District Court for
the Middle District of Pennsylvania under 42 U.S.C. § 1983,
claiming violations of his First Amendment rights of free
speech, assembly,3 and religious expression. In his complaint,
McTernan named as defendants the City of York, Mayor John
Brenner and Police Commissioner Mark L. Whitman in their
official capacity, and Sergeant Barth, in his individual and
official capacities. McTernan sought declaratory relief,
temporary and permanent injunctions, and compensatory and
punitive damages.

Defendants Brenner, Whitman, the City of York, and
Sergeant Barth jointly filed a motion to dismiss under Fed. R.
Civ. P. 12(b)(6). Claims against Defendants Brenner, Whitman,
and Sergeant Barth in their official capacity were dismissed.
M.A. 5 (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(noting that “an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity[,]” since “[i]t is
not a suit against the official personally, for the real party in
interest is the entity.”)). Dismissing McTernan’s municipal
liability claim against the City of York, the District Court also
found that McTernan failed to identify a “custom or policy” of
depriving McTernan of his constitutional rights. M.A. 6-9. The
claim against Sergeant Barth in his individual capacity,
however, survived dismissal by the “thinnest” margin. M.A. 11.

3
McTernan references his claim of right to assembly but does
not set forth a separate argument in his brief. Appellant’s Br. at
16. For purposes of our analysis, we conclude that this claim is
encompassed in his free speech claim.

9
 After discovery, Sergeant Barth moved for summary
judgment, and the District Court granted the motion.
Addressing the law underpinning the “free exercise” claim, the
District Court stated that if government action is “neutral and
generally applicable,” and burdens religious conduct only
“incidentally,” the Free Exercise Clause offers no protection. If,
on the other hand, government action is not neutral and
generally applicable, strict scrutiny applies, and the government
action violates the Free Exercise Clause unless it is narrowly
tailored to advance a compelling government interest. M.A. 20.
The District Court concluded that Sergeant Barth’s directive to
McTernan, prohibiting his standing or lingering in the alley, was
neutral and generally applicable, since the prohibition applied
equally to protesters and Planned Parenthood personnel, and no
evidence suggested that the restriction was prompted by hostility
to McTernan’s pro-life message. M.A. 20. The District Court
found, further, that the prohibition only incidentally burdened
McTernan’s religiously motivated conduct:

McTernan admits that the Planned Parenthood
facility is bordered on two sides by public
sidewalks in which he is free to engage in his
religious conduct. (SUF, SIO ¶ 18; McTernan Dep.
at 15-18.) McTernan admits that Sergeant Barth did
not prohibit or prevent him or any member of his
group from carrying signs, distributing literature,
expressing their views, or otherwise engaging in
religiously motivated conduct on these sidewalks or
in any location other than the alley. (SUF, SIO
¶¶ 13-16; McTernan Dep. at 35-37.) McTernan

10
 retained substantial opportunity to engage in his
religiously motivated conduct.

M.A. 21. Accordingly, the District Court found no violation of
the Free Exercise Clause.

Addressing the free speech and assembly claims, the
District Court applied the “forum” analysis adopted by the
Supreme Court. Under this approach, the type of forum in
which the speech occurs dictates the restrictions that the
government may permissibly impose. Int’l Soc’y for Krishna
Consciousness, Inc. v. N.J. Sports & Exposition Auth., 691 F.2d
155, 159 (3d Cir. 1982) (“The extent to which the government
may limit activity protected by the First Amendment depends
largely on the locale where the speech or conduct takes place.”).

The Supreme Court has identified three types of fora: the
traditional public forum, the designated public forum, and the
nonpublic forum. Ark. Educ. Television Comm’n v. Forbes, 523
U.S. 666, 677 (1998). Traditional public fora include public
parks, streets, and other locales historically used for purposes of
assembly, communicating with fellow citizens, and discussing
public questions. Boos v. Barry, 486 U.S. 312, 318 (1988). The
District Court concluded, and the parties do not contest on
appeal, that Rose Alley is a public street maintained by the City
of York and thus a traditional public forum.

Speech in a traditional public forum is afforded maximum
constitutional protection. Accordingly, government regulation
of speech in a traditional public forum is subject to strict
scrutiny and will only be upheld if narrowly tailored to serve a

11
compelling governmental interest. U.S. v. Grace, 461 U.S. 171,
177 (1983). However, where the government limits the time,
place, or manner of speech in a traditional public forum without
reference to the subject matter of the speech or the viewpoint
expressed, intermediate scrutiny applies. Id. In such a situation,
government regulation of speech is constitutional, provided it is
narrowly tailored to serve an important governmental interest,
and leaves open ample alternative channels for communication
of information. Id.

The District Court concluded that the restriction placed on
McTernan’s speech was content-neutral, was narrowly tailored
to serve a compelling government interest, and left open ample
alternatives for McTernan to communicate with Clinic clients.
The District Court discounted McTernan’s claim that the interest
in safety was mere pretext, reasoning that the near-miss
involving McTernan, as well as a second, unrelated traffic
incident in the alley, justified the restriction.

On appeal, McTernan contends that he was targeted solely
because of his pro-life views, that the threat of arrest burdened
his religiously motivated expression and speech, and that the
District Court overstated the safety concerns presented by his
activities in the alley.4

4
McTernan appeals the District Court orders granting
Sergeant Barth’s motion for summary judgment, and granting in
part and denying in part Defendants’ motion to dismiss. We
exercise jurisdiction over his appeal of both orders under 28
U.S.C. § 1291.

12
 II.

The intersection of the various First Amendment rights at
play here is reminiscent of a law school exam. We will attempt
to parse the relevant issues in our analysis to provide guidance
to the District Court, as we conclude that there are genuine
issues of material fact that require us to remand.

A.

Our review of the District Court’s grant of summary
judgment is plenary. AT&T v. JMC Telecom, LLC, 470 F.3d
525, 530 (3d Cir. 2006). Summary judgment is only appropriate
if there are no genuine issues of material fact, and the movant is
entitled to judgment as a matter of law. Id. In reviewing the
District Court’s grant of summary judgment, we review the facts
in the light most favorable to the nonmoving party. Id.

We note at the outset that whether a restriction on the
time, place, or manner of speech is reasonable presents a
question of law. However, the reasonableness of a restriction
involves an underlying factual inquiry. Under Ward, the
challenged restriction must be (1) content-neutral, (2) narrowly
tailored to serve an important governmental interest, and (3)
leave open ample alternatives for communication of
information. These elements involve subsidiary fact questions
that must be submitted to a jury, except where the evidence
applicable to a particular element entitles a party to judgment as
a matter of law. See Pouillon v. City of Owosso, 206 F.3d 711,
717-18 (6th Cir. 2000); see also Ovadal v. City of Madison, 416
F.3d 531, 537-38 (7th Cir. 2005); cf. Colacurcio v. City of Kent,

13
163 F.3d 545, 558 (9th Cir. 1998) (Reinhardt, J. dissenting)
(concluding that plaintiffs introduced legally sufficient evidence
that the challenged restriction was not content-neutral, requiring
submission of the issue to a jury).

We review the District Court’s grant of Defendants’
motion to dismiss de novo. Omnipoint Commc’ns Enters., L.P.
v. Newtown Twp., 219 F.3d 240, 242 (3d Cir. 2000). We must
“accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002)).

In Bell Atlantic Corp. v. Twombly, the Supreme Court
confirmed that Fed. R. Civ. P. 8(a)(2) “‘requires only a short and
plain statement of the claim showing that the pleader is entitled
to relief,’ in order to ‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests,’” and that this
standard does not require “detailed factual allegations.” 550
U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, “a plaintiff’s [Rule
8] obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Phillips, 515 F.3d at 231 (quoting Twombly, 127 S.Ct. at
1964-65). In other words, Rule 8 “requires a ‘showing,’ rather
than a blanket assertion, of entitlement to relief” that rises
“above the speculative level.” Id. at 231-32 (quoting Twombly,
127 S.Ct. at 1965 & n. 3). “Rule 8(a)(2) requires that the ‘plain

14
statement’ possess enough heft to ‘sho[w] that the pleader is
entitled to relief.’” Id. at 231 (quoting Twombly, 127 S.Ct. at
1966).

A complaint may not be dismissed merely because it
appears unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits. Id. (quoting Twombly, 127 S.Ct.
at 1964-65). The Supreme Court's Twombly formulation of the
pleading standard “‘does not impose a probability requirement
at the pleading stage,’” but instead “‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal
evidence’ of the necessary element.” Id. at 234 (quoting
Twombly, 127 S.Ct. at 1965).

B.

McTernan contends that Sergeant Barth’s directive not to
stand in Rose Alley violated his First Amendment right to the
free exercise of religion. The Free Exercise Clause of the First
Amendment, applicable to state action through the Fourteenth
Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303
(1940), provides that “Congress shall make no law . . .
prohibiting the free exercise [of religion].” The Free Exercise
Clause not only forbids regulation of religious beliefs as such
but also protects religiously motivated expression. Employment
Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872,
877 (1989). Here, McTernan’s activities at the Clinic are
indisputably animated by sincerely held Christian beliefs.

The Free Exercise Clause, however, does not afford
absolute protection to religiously motivated expression. Where

15
a law is “neutral and of general applicability[,]” it “need not be
justified by a compelling government interest even if the law has
the incidental effect of burdening a particular religious
practice.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993) (citing Smith, 494 U.S. at
880). If, on the other hand, the government action is not neutral
and generally applicable, strict scrutiny applies, and the
government action violates the Free Exercise Clause unless it is
narrowly tailored to advance a compelling government interest.
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144,
165 (3d Cir. 2002). Government action is not neutral and
generally applicable if it burdens religious conduct because of
its religious motivation, or if it burdens religiously motivated
conduct but exempts substantial comparable conduct that is not
religiously motivated. See Hialeah, 508 U.S. at 543-46;
Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004).5

5
Alternatively, McTernan contends that strict scrutiny is
appropriate under a “hybrid rights” theory, regardless of whether
the challenged restriction is “neutral” and “generally
applicable.” McTernan relies on a footnote in Tenafly, where
we stated, “Strict scrutiny may also apply when a neutral,
generally applicable law incidentally burdens rights protected by
‘the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the
press,’ . . . .” 309 F.3d at 165 n.26 (quoting Smith, 494 U.S. at
881) (emphasis added). We have neither applied nor expressly
endorsed a hybrid rights theory, and will not do so today.
McTernan has not articulated reasons specifically supporting our
application of the doctrine here. Our reluctance to do so is

16
reinforced by the decisions of our sister courts. See, e.g.,
Hialeah, 508 U.S. at 566-67 (Souter, J., dissenting) (dismissing
doctrine as “ultimately untenable”); Jacobs v. Clark County Sch.
Dist., 526 F.3d 419, 440 n.45 (9th Cir. 2008) (declining to adopt
doctrine after noting widespread scholarly criticism); Knight v.
Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)
(describing hybrid rights theory as dicta and not binding on this
court); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177,
180 (6th Cir. 1993) (describing doctrine as “completely
illogical” and declining to recognize it until Supreme Court
expressly does so itself); Littlefield v. Forney Indep. Sch. Dist.,
108 F.Supp.2d 681, 704 (N.D. Tex. 2000) (refusing to apply
doctrine, which is likely based upon a misreading of Smith, 494
U.S. at 881-82, aff'd 268 F.3d 275 (5th Cir. 2001)); Warner v.
City of Boca Raton, 64 F.Supp.2d 1272, 1288 n.12 (S.D. Fla.
1999) (finding hybrid rights language in Smith to be dicta);
Erwin Chemerinsky, Constitutional Law: Principles and
Policies § 12.3.2.3 at 1215-16 (2d ed. 2002) (calling doctrine’s
contours “unclear”).
McTernan does not cite, and the Court is not aware of,
any case in which strict scrutiny has been applied to a “neutral”
and “generally applicable” regulation restricting the time, place,
or manner of religiously-motivated speech. See Berry v. Dep’t
of Social Servs., 447 F.3d 642, 649 n. 5 (9th Cir. 2006); cf.
Jacobs, 526 F.3d at 440 n.45 (“Significantly, no court has ever
allowed a plaintiff to bootstrap a free exercise claim in this
manner. . . . We decline to be the first.”) (internal citation
omitted). Our refusal to apply a hybrid rights theory here is
reinforced by the narrow reach the Supreme Court has given to

17
 Here, McTernan’s ability to convey his religiously-
motivated message at the Clinic was burdened. Sergeant Barth
advised McTernan not to stand, linger, or walk aimlessly in the
alley, and threatened to arrest him after he walked through the
alley. As a result, McTernan could not use the alley to
communicate with clients deposited at the rear entrance of the
Clinic.

We first must ask, as the District Court did, whether the
prohibition was “neutral” and “generally applicable.” Finding
no evidence that Sergeant Barth was motivated by hostility to
McTernan’s Christian beliefs, the District Court concluded that
the restriction complied with the principle of “neutrality.” The
District Court also concluded that the restriction, conveyed to
protesters and Planned Parenthood personnel, was “generally
applicable,” and that Sergeant Barth enforced the restriction
evenhandedly. Although Sergeant Barth threatened McTernan
alone with arrest, the District Court found that only McTernan
violated the restriction. As evidence of Planned Parenthood
personnel’s compliance with the restriction, the District Court
cited Sergeant Barth’s observation that “for the most part,

the test set forth in Shebert v. Verner, 374 U.S. 298 (1963),
requiring strict scrutiny of government actions that substantially
burden religious practice. Smith, 494 U.S. at 883. Hence, we
conclude that McTernan’s simultaneous assertion of claims
under the Free Exercise and Free Speech Clauses, without more,
does not warrant strict scrutiny.

18
people abided by them [his instructions].” M.A. 21, 166.

In determining that the challenged restriction was
“generally applicable,” the District C ourt relied,
overwhelmingly, on the articulation of the restriction to
members of both camps. Because Sergeant Barth instructed
protesters and Planned Parenthood personnel not to stand in the
alley, the District Court concluded that the restriction was
“generally applicable.” Facial applicability, however, is not
conclusive of whether a restriction is “generally applicable.”
Tenafly, 309 F.3d at 167. A regulation facially applicable to all
persons is not “generally applicable” if it is enforced against a
category of religiously motivated conduct, but not against a
substantial category of conduct “that is not religiously motivated
and that undermines the purposes of the law to at least the same
degree as the covered conduct that is religiously motivated.”
Blackhawk, 381 F.3d at 209; Hialeah, 508 U.S. at 546; cf.
Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding that
city violated Free Exercise Clause by enforcing ordinance
banning meetings in park against Jehovah’s Witnesses but
exempting other religious groups).

Here, Sergeant Barth excluded McTernan from the alley;
however, the record reflects that Planned Parenthood personnel
were permitted to walk freely through it. Although Sergeant
Barth initially instructed protesters and Planned Parenthood
personnel that they “were allowed to walk in the alley,” and that
“travel through the alley was acceptable,” he later admonished
McTernan that he had to walk through the alley “correctly” and
in the “right way” and could not “walk aimlessly” or “English-
walk” there. McTernan requested that Sergeant Barth further

19
define these terms, but he declined. M.A. 224. After McTernan
walked up and down the alley, Sergeant Barth threatened to
arrest him if he did so again. M.A. 220, 224.

Planned Parenthood personnel and Clinic clients, by
contrast, walked freely across the alley, as Sergeant Barth
acknowledged in his deposition. M.A. 166 (noting that Planned
Parenthood volunteers “were allowed to walk in the alley.”).
There was also evidence in the record of the habitual passage
through the alley of clients and escorts. M.A. 219. Sergeant
Barth does not contend, however, that he threatened to arrest any
person other than McTernan. Nor does the record suggest that
Sergeant Barth actually limited the manner in which Planned
Parenthood personnel could walk in or through the alley.

In short, while there is not a great deal of evidence in the
record as to what was transpiring elsewhere in the alley at the
time, it is clear that there was repeated “walking” in the alley by
Planned Parenthood escorts and clients. Why McTernan’s
passage through the alley did not constitute the “correct” or the
“right way” of traveling “in” or “through” the alley, while
Planned Parenthood volunteers’ use of the alley was acceptable,
is not apparent from the record. That question presents a fact
issue. A reasonable jury could conclude that McTernan and
Planned Parenthood personnel’s respective use of the alley
created equivalent safety hazards, justifying enforcement of the
restriction against both groups. Indeed, traffic safety and traffic
flow were potentially impaired by the progress of patrons,
flanked by escorts, through the alley. Accordingly, a reasonable
jury could conclude that the restriction “fails the general
applicability requirement . . . [because] it burdens a category of

20
religiously motivated conduct but exempts or does not reach a
substantial category of conduct that is not religiously motivated
and that undermines the purposes of the law to at least the same
degree as the covered conduct that is religiously motivated.”
Blackhawk, 381 F.3d at 209. In light of the sparse factual record
before us, we will remand for a jury determination of this issue.6

If not generally applied, a restriction burdening religiously
motivated expression must satisfy strict scrutiny – that is, it must
serve a compelling government interest and must be narrowly
tailored to serve that interest. Hialeah, 508 U.S. at 546; Tenafly,
309 F.3d at 172. “Compelling” interests, the Supreme Court has
explained, identify “interests of the highest order.” Hialeah, 508
U.S. at 546 (quoting McDaniel v. Paty, 435 U.S. 618, 638
(1978)). Relying on precedent and the specific facts here, the

6
A restriction on religiously motivated expression is subject
to strict scrutiny unless it is “generally applicable” and
“neutral.” A regulation is not “neutral” if its “object . . . is to
infringe upon or restrict practices because of their religious
motivation.” Hialeah, 508 U.S. at 533. We agree with the
District Court that there is no evidence here that the restriction
was motivated by hostility to McTernan’s religious beliefs,
rather than safety concerns, and so it complies with the principle
of “neutrality.” This conclusion flows from the evidence
discussed at length below in our analysis of McTernan’s free
speech claim. Although the District Court’s grant of summary
judgment on the “neutrality” prong was correct, we apply strict
scrutiny because a reasonable jury could conclude that the
restriction was not “generally applicable.”

21
District Court concluded that the restriction served a
“compelling” governmental interest – promoting traffic safety
in the alley. For its conclusion, the Court cited Madsen and
Schenck, where the Supreme Court, applying intermediate
scrutiny, determined that a fixed buffer zone around a
reproductive health clinic advanced the “strong” governmental
interest in vehicular and pedestrian safety. Madsen, 512 U.S. at
758; Schenck; 519 U.S. at 375-76. The District Court also
emphasized certain characteristics of the alley exacerbating the
safety hazard presented, including its narrow physical
dimensions and the presence of heavy trucks – conditions that
twice nearly resulted in accidents.

The governmental interests asserted to justify the
restriction here are narrower than other abortion cases, where
protesters impeded women’s access to reproductive health
services by physically blockading clinic driveways and
entrances, and violated the property rights of clinic owners, by
trespassing on clinic parking lots and entryways.7 There, law
enforcement officers were faced with potentially violent
altercations, with protesters behaving aggressively toward clinic

7
Although Appellant John Holman was charged with trespass,
neither Sergeant Barth nor any of the appellee-officers identify
preservation of private property rights to justify the challenged
restriction. Nor could they plausibly do so, since appellants’
presence in Rose Alley, a public street maintained by the City of
York, is not private property.

22
personnel,8 endangering the health of pregnant women prior to
surgery, or impinging on the privacy rights of clinic personnel
by picketing outside their homes.9 Here, by contrast, Sergeant

8
Although disorderly conduct charges were filed on one
occasion against Appellant Edward Snell, Sergeant Barth does
not identify preservation of public order, or the threat of violent
altercations, to justify the prohibition enforced.
9
See, e.g., Schenck, 519 U.S. at 362-63 (upholding fixed
buffer zone around reproductive health clinic where dozens of
protesters would conduct “large-scale blockades” of clinic
driveways and entrances, throw themselves on top of the hoods
of cars, “grab[], push[], and shov[e]” pregnant women with
“varying levels of belligerence,” and elbow and spit on clinic
volunteers, often erupting into violent altercations); Madsen,
512 U.S. at 758 (upholding fixed buffer zone around
reproductive health clinic, where throngs of up to 400 protesters
would congregate in the clinic’s driveways, surround clinic
patients, and picket outside of clinic employees’ private
residences. These activities produced “deleterious physical
effects,” including elevated anxiety and hypertension, on clinic
patients, who were required to receive higher doses of sedation
to undergo surgical procedures); New York ex rel. Spitzer, 273
F.3d at 192 (upholding limited buffer zone around reproductive
health clinic where protesters shouted at close range, blocked
vehicular and pedestrian access until clients “gave up,” and
“distracted oncoming cars in aggressive ways”); Nat’l Org. for
Women, 37 F.3d at 649 (upholding injunction prohibiting
obstructing access to reproductive health clinic where protesters

23
Barth seeks to justify the restriction solely on grounds of traffic
safety. Sergeant Barth does not contend that the challenged
restriction was necessary to ensure client access to clinic
services, to avoid trespass onto clinic property, to prevent
violent altercations between protesters and clients or clinic
personnel, to protect the health of pregnant women, or to
safeguard the privacy rights of clinic personnel. Moreover,
Madsen and Schenck are of limited use to McTernan. In both
cases, the Supreme Court, applying intermediate scrutiny,
merely determined that promoting traffic safety and traffic flow
constituted “significant” – not “compelling” – governmental
interests. Schenck; 519 U.S. at 369, 375-76; Madsen, 512 U.S.
at 758.

On the facts before us, we cannot conclude that the single
interest asserted by Sergeant Barth is “compelling” as a matter
of law. We accept, as a general proposition, that police have an
interest in safety and avoiding collisions between cars and
pedestrians in the alley. It surely is an important interest, in the
abstract, but query whether the interest was “compelling” in this
fact pattern. The DVDs supplied by the plaintiffs depict a
peaceful setting, with very few people outside the Clinic. It is
undisputed that the alley is lightly traveled. We also find
unpersuasive the incident identified by Sergeant Barth, and
credited by the District Court, to justify the restriction. When
Sergeant Barth first instructed advocates to stay out of the alley,
he cited an incident in which McTernan was nearly struck by a

engaged in day-long physical blockades of clinic, “creating a
risk of physical or mental harm to patients.”).

24
car. We do not find that the incident substantiates the existence
of a “compelling” safety hazard. Nearly three months separate
the incident from the police response it allegedly precipitated.
This temporal gap is inconsistent with the urgent safety hazard
allegedly created by McTernan’s activities.

A second traffic incident in Rose Alley cited by the
District Court also does not demonstrate the existence of a
“compelling” safety hazard from protesters’ use of the alley. In
December 2005, a truck nearly struck an anti-abortion advocate
while he was conversing with a police officer in the alley, near
the intersection with South Beaver Street. Significantly, the
restriction was not imposed until approximately ten months after
this incident. Hence, we reject the District Court’s conclusion
that the December 2005 incident demonstrates a “compelling”
governmental interest in traffic safety in the alley as a matter of
law. See New York ex rel. Spitzer, 273 F.3d at 208 (“While
narrow regulations may sometimes be necessary, they must be
supported by more than a few stories of near-miss traffic
accidents . . . .”). Rather, this aspect of the case presents a fact
issue for the jury.

Even if the government’s interest is found to be
compelling, that interest still must be “narrowly tailored.” Here,
McTernan urges that the least restrictive means of achieving
safety would have been for Sergeant Barth to direct traffic:

Even under a heightened scrutiny analysis,
Sergeant Barth’s actions fail since any restriction
greater than directing traffic would be overbroad
and burden too much constitutionally protected

25
 activities in an area that is often the most effective
place for speech. The trial court, therefore, erred
in granting Sergeant Barth’s Motion for Summary
Judgment.

Appellant’s Br. at 28. McTernan’s argument is at least facially
plausible. Could Sergeant Barth not have maximized safety by
directing traffic at the intersection of South Beaver Street and
Rose Alley, slowing or stopping the occasional car or truck
entering the alley, to permit McTernan to walk in the alley, just
as others crossed or passed through the alley? The District
Court concluded, without analysis, that the restriction was
“narrowly tailored.” However, given that the restriction
prevented McTernan from being in the alley at all and denied
him access to those patrons entering the Clinic from the rear, we
are not so sure. Significant fact questions underlie this issue,
too, and a jury should decide whether this option was the least
restrictive one available to Sergeant Barth.

Accordingly, McTernan’s claim under the Free Exercise
Clause of the First Amendment should have been submitted to
a jury, and it was error to grant summary judgment in favor of
Sergeant Barth on McTernan’s Free Exercise claim.

B.

McTernan maintains that his exclusion from Rose Alley
violated his free speech rights under the First Amendment. “The
Supreme Court has adopted a forum analysis as a means of
determining when the Government’s interest in limiting the use
of its property to its intended purpose outweighs the interest of

26
those wishing to use the property for other purposes.” Paff v.
Kaltenbach, 204 F.3d 425, 431 (3d Cir. 2000) (citing Cornelius
v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800
(1985)). Under this analysis, “[t]he extent to which the
government may limit activity protected by the First
Amendment depends largely on the locale where the speech or
conduct takes place.” Int’l Soc’y for Krishna Consciousness,
Inc., 691 F.2d at 159.

The Supreme Court has identified three types of fora: the
traditional public forum, the designated public forum, and the
nonpublic forum. Ark. Educ. Television Comm’n , 523 U.S. at
677. A traditional public forum is defined by the objective
characteristics of the property, such as whether the location has
long been open to expressive activity. Id. It is undisputed that
Rose Alley, a thoroughfare maintained by the City of York, is a
public forum.

The government may impose reasonable restrictions on
the time, place, or manner of speech in a public forum, provided
that restrictions “‘are justified without reference to the content
of the regulated speech, that they are narrowly tailored to serve
a significant governmental interest, and that they leave open
ample alternative channels for communication of the
information.’” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S.
at 293). “[W]hen the government restricts speech, the
government bears the burden of proving the constitutionality of
its actions.” See U.S. v. Playboy Entm’t Group, Inc., 529 U.S.
803, 816 (2000) (citing Greater New Orleans Broad. Ass’n, Inc.
v. United States, 527 U.S. 173, 183 (1999)).

27
 Applying Ward, we must determine whether the
restriction here was content-neutral, was narrowly tailored to
protect public safety in the alley, and left open ample
alternatives for McTernan to communicate his message.

1.

The first prong of Ward focuses on whether the restriction
on speech is content-neutral. The central inquiry is whether “the
government has adopted a regulation of speech because of
disagreement with the message it conveys.” Ward, 491 U.S. at
791 (citing Clark, 468 U.S. at 295). Finding no evidence of
police hostility to McTernan’s pro-life views, the District Court
concluded that legitimate safety concerns, instead, prompted the
restriction. McTernan demurs for two reasons, neither of which
is persuasive.

McTernan asks the Court to infer police hostility to his
pro-life message from (1) Sergeant Barth’s enforcement of the
restriction against him, and (2) Planned Parenthood’s contract
with the York police department, which purportedly authorized
Planned Parenthood to direct the conduct of officers assigned to
the Clinic.

McTernan adduced no evidence of police hostility to his
pro-life message.10 Although the record shows that Sergeant

10
See, e.g., United States v. Dinwiddie, 76 F.3d 913 (8th Cir.
1996) (noting that because there is “no disparate-impact theory
in First Amendment law,” “the fact that a statute . . .

28
Barth prohibited McTernan from walking up and down the alley,
while permitting Planned Parenthood personnel to escort patrons
across it, there is not a scintilla of evidence suggesting that
Sergeant Barth was motivated by disagreement with
McTernan’s pro-life views. Furthermore, the disparate
enforcement here does not support an inference of lack of
“content” neutrality. Something must point decisively to a
motivation based on the subject matter, or content, of the
speaker’s message, as opposed to a purpose of avoiding
collisions between pedestrians and cars in the alley. Casey v.
City of Newport, 308 F.3d 106, 111 (1st Cir. 2002) (concluding
that government regulation was content-neutral, notwithstanding
its disparate effect on different styles of music, because there
was “no suggestion in the record that the no-amplification
restriction was motivated by the content of . . . [the plaintiff’s]
performances”); Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d
1336, 1345 n.10 (11th Cir. 1994) (concluding that government

disproportionately punishes those who hold a certain viewpoint
does not ‘itself render the [statute] content or viewpoint
based.’”) (citing Madsen, 512 U.S. at 763); Ater v. Armstrong,
961 F.2d 1224,1228 (6th Cir. 1992) (finding that statute treating
individuals soliciting contributions differently than those
distributing literature was content-neutral because it was aimed
at the “noncommunicative impact” of conduct rather than the
substance of speech itself); Boos, 485 U.S. at 320 (upholding
disparate treatment of groups espousing different viewpoints,
“so long as the justifications for regulations have nothing to do
with the content” and are based on the “secondary effect[s]” of
the conduct targeted).

29
restriction was content-neutral, notwithstanding the fact that it
imposed a greater burden on tabloid-style newspapers than on
broadsheet newspapers, because plaintiff “produced no evidence
that the City enacted the Ordinance because of a dislike of the
messages conveyed by tabloid-style newspapers.”).

Second, McTernan cites the contract between Planned
Parenthood and the City of York as evidence that Planned
Parenthood directed Sergeant Barth to exclude protesters from
Rose Alley, thus proving a pro-choice bias. McTernan’s
allegation is conjecture: there is no evidence that the Clinic
conceived of the restriction, or that the contract empowered
Planned Parenthood to direct Sergeant Barth’s activities at the
Clinic. To the contrary, Barth was obligated to enforce the laws
of the City of York and to maintain order. M.A. 164-65, 183.
McTernan’s second argument thus fails.

Hence, the District Court correctly determined that the
challenged restriction was content-neutral.

2.

Under Ward, a content-neutral restriction on the time,
place, or manner of speech ordinarily receives intermediate
scrutiny and thus will be upheld, provided the restriction serves
a significant government interest and is narrowly tailored to
serve that interest. Ward, 491 U.S. at 791.

(i)

In our analysis of McTernan’s Free Exercise claim, we

30
rejected the District Court’s conclusion that the challenged
restriction, which promoted traffic safety in Rose Alley,
necessarily served a “compelling” governmental interest. We
found that the specific evidence adduced by Barth did not
establish a “compelling” safety hazard as a matter of law.
Nonetheless, following Madsen and Schenck, we conclude, on
the facts before us, that police did have a “significant” interest
in promoting the safe, efficient flow of traffic in Rose Alley.

In Madsen, the Supreme Court determined that the
government had a “strong interest in the public safety and order,
[and] in promoting the free flow of traffic on public streets and
sidewalks . . . .” 512 U.S. at 767. There, protesters’ presence in
a street used to access the clinic – Dixie Way – created a clear
traffic hazard. Id. at 769. Protesters would congregate in Dixie
Way, risking collisions with approaching cars. Id. To “ensur[e]
that petitioners do not block traffic on Dixie Way” and to reduce
the risk of an accident, the Supreme Court upheld a fixed buffer
zone around clinic entrances and driveways. Id.

In Schenck, the Supreme Court recognized, similarly, a
significant governmental interest in vehicular and pedestrian
safety. 519 U.S. at 375-76. There, the Court determined that the
presence of protesters in clinic driveways and driveway
entrances created a “dangerous situation” because of the
“interaction between cars and protesters.” Id. Citing the
significant governmental interest in traffic safety, the Court

31
upheld a fixed buffer zone around the clinic. Id. at 376.11

Here, as in Schenck and Madsen, protesters and Planned
Parenthood personnel and clients would walk in Rose Alley.
The presence of people in a public thoroughfare undoubtedly
constituted a distraction for drivers. The physical dimensions of
the alley, which was less than 20 feet wide, as well as the
presence of heavy trucks, exacerbated this hazard. We find,
therefore, that the governmental interest in the movement of
pedestrians in Rose Alley, including protesters, while not
“compelling,” was real and could be termed, “significant.”

(ii)

To survive intermediate scrutiny, a content-neutral
restriction must also be narrowly tailored to achieve the interest
asserted. Ward, 491 U.S. at 791. The Supreme Court, however,
has mandated a “more searching” review where a restriction
takes the form of an injunction, rather than a legislative
enactment. Madsen, 512 U.S. at 768. We must decide whether
heightened scrutiny also applies here, because a police directive,
such as the one issued by Sergeant Barth, is similar to an
injunction. The District Court did not consider whether the form

11
We are cognizant that Schenck, analyzing a “combination”
of governmental interests rather than solely traffic safety,
concluded that these interests were “significant.” 519 U.S. at
376. However, Schenck cited with approval Madsen, where the
Court held that promoting traffic safety and traffic flow was
itself a significant governmental interest. Id.

32
of the restriction triggers heightened scrutiny.

We rely on the principles enunciated in Madsen to
determine whether heightened scrutiny is appropriate here. Id.
There, the Court considered whether intermediate scrutiny
governed the constitutionality of a court injunction that, among
other things, excluded abortion protesters within a specified
radius of a reproductive health clinic. Id. at 765. Finding
intermediate scrutiny inadequate, the Court observed that
injunctions present two risks, warranting a “more stringent
application of general First Amendment principles.” Id. First,
injunctions do not emanate from deliberative, democratic
decisionmaking processes. Id. “Ordinances represent a
legislative choice regarding the promotion of particular societal
interests. Injunctions, by contrast, are remedies imposed for
violations (or threatened violations) of a legislative or judicial
decree.” Id. (citing United States v. W.T. Grant Co., 345 U.S.
629, 632-633 (1953)). Second, injunctions, which target
discrete groups rather than society generally, may not attract
public scrutiny, increasing the likelihood that unreasonable
injunctions will escape public condemnation. Id. at 764. As the
Court observed in Madsen, “[T]here is no more effective
practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which
officials would impose upon a minority must be imposed
generally.” Id. (quoting Ry. Express Agency, Inc. v. New York,
336 U.S. 106, 112-113 (1949)).

We conclude that a police directive, issued by officers in
the field, poses risks similar to those presented by an injunction,
warranting heightened scrutiny. First, a police directive, like an

33
injunction, does not embody the popular will but, rather,
represents an exercise of executive authority. The absence of
democratic involvement was particularly stark here. Sergeant
Barth, apparently, conceived the restriction without meaningful
public input and without reference to formal policy or
administrative channels. Further, Sergeant Barth’s directive did
not result from deliberative, democratic processes – that is, it
was not the product of a “legislative choice regarding the
promotion of particular societal interests.” Id. at 765.
Democratic input is especially critical in formulating speech
restrictions, which must carefully balance constitutional rights
against public safety imperatives. Further, as in Madsen, the
directives here, which focused on First Amendment activity at
a single reproductive health clinic, might easily escape public
scrutiny, requiring more vigilant judicial oversight. Hence, a
directive issued by officers in the field, such as the one issued by
Sergeant Barth, presents constitutional hazards similar to those
identified with injunctions in Madsen.

Police directives, in fact, present potentially greater
opportunities for arbitrary enforcement than injunctions.
Whereas injunctions are written, police directives are oral. Oral
directives often lack the precision and specificity required of
federal injunctions. Moreover, oral police directives are less
amenable to judicial, executive, and public oversight.

The concerns identified above – real rather than
hypothetical – are illustrated here. Sergeant Barth failed to
define permissible and proscribed uses of the alley in clear
terms. The restrictions imposed on the protesters varied greatly.
Each officer assigned to the Clinic restricted access to the alley

34
in a different manner: Officer Barth ostensibly prohibited
protesters and Planned Parenthood personnel from standing,
lingering, or walking aimlessly through the alley; Officer
Camacho barred protesters completely from the alley, but
granted Clinic personnel unfettered access to it; and Officer
Koltunovich, at times, did not restrict protesters’ access at all.
M.A. 165-66, 183, 220, 224; S.A. 156, 168, 256; H.A. 188-89.
Hence, it is appropriate in this case to apply heightened scrutiny
to the restrictions enforced by Sergeant Barth.

The application of heightened scrutiny modifies a single,
but significant, aspect of the Ward analysis – the “tailoring”
requirement. Under intermediate scrutiny, a restriction is
narrowly tailored to achieve an important governmental interest
if that interest would be less effectively achieved without the
regulation. Ward, 491 U.S. at 799. However, a regulation need
not represent the least restrictive means of achieving the
articulated aim. Id. If a restriction represents the most effective
means of accomplishing the stated purpose, it will survive
intermediate scrutiny, even if other alternatives would place a
lesser burden on individual speech. Id.

Heightened scrutiny, by contrast, imposes a more stringent
“narrowing” requirement. Proof that a restriction represents the
most effective means of achieving the proffered government
interest is insufficient. Madsen, 512 U.S. at 765. Instead, a
restriction will survive heightened scrutiny only if it “burden[s]
no more speech than necessary” to serve that interest. Id.

Here, we cannot conclude, as a matter of law, that the
challenged restriction “burden[s] no more speech than

35
necessary” to protect traffic safety in Rose Alley. Id. McTernan
identified a plausible alternative to protect pedestrians and
drivers in the alley, without curtailing protesters’ First
Amendment rights. McTernan suggests that Sergeant Barth
could have directed traffic at the intersection of Beaver Street
and Rose Alley, thus enabling McTernan and other protesters
safely to communicate with clients in the alley. The District
Court did not address this alternative but concluded that the
restriction was “narrowly tailored.” It was error for the District
Court to conclude, as a matter of law, that excluding protesters
from Rose Alley necessarily constituted the least restrictive
means of protecting public safety.

The significant fact issues present here also preclude
summary judgment on the “tailoring” requirement. A restriction
cannot be “narrowly tailored” in the abstract; it must be tailored
to the particular government interest asserted. Only when the
contours of that interest are clear may we decide whether the
means selected to accomplish it have been “narrowly tailored.”
Here, Sergeant Barth cited traffic safety to justify restricting
access to Rose Alley. We previously identified traffic safety as
a “significant” governmental interest, but query whether the
safety issues are sufficiently defined, on the record before us, to
sustain summary judgment that the restriction was “narrowly
tailored” to that interest.

We conclude that significant fact questions persist,
precluding summary judgment on this issue. There is a paucity
of evidence as to the safety hazards presented by protesters’
activities in the alley. Largely unknown is how drivers,
protesters, and Clinic personnel interacted in the alley. The

36
record, indeed, is silent on: (1) the number of protesters present
in the alley on a typical day; (2) the average speed and volume
of traffic in the alley; (3) how frequently the alley was subject
to two-way traffic; (4) whether protesters typically stood at the
edge, or in the middle, of the alley; and (5) whether protesters
regularly conversed with Clinic clients, or whether they solely
displayed signs in the alley. Absent this information, we are
hard pressed to conclude that Sergeant Barth selected the “least
burdensome” alternative to promote traffic safety in the alley as
a matter of law.

Accordingly, summary judgment was improper, and the
jury should decide this issue on remand.

3.

The final Ward requirement is that the restriction leave
ample opportunities for communication of information. The
District Court concluded that McTernan, who could espouse his
views from the public sidewalks surrounding the Clinic,
possessed adequate alternatives to convey his pro-life message.
M.A. 29. McTernan’s contention on appeal is a narrow one. He
focuses on the alternatives available to communicate with
clients using the rear entrance of the Clinic. McTernan contends
that access to Rose Alley is critical to engage these clients.
McTernan’s assertion is factually correct: sustained
conversation with clients using the rear entrance is only possible
in the alley. However, the First Amendment does not guarantee
a speaker an absolute right to actual conversation with his
audience in every circumstance. To the contrary, the Supreme
Court has repeatedly upheld buffer zones around reproductive

37
health clinics, even where, as a practical matter, the restriction
would impede face-to-face interaction with clients. See Schenck,
519 U.S. at 376 (upholding 15-foot buffer zone around clinic
doorways and driveways); Madsen, 512 U.S. at 770 (upholding
36-foot buffer zone around clinic entrances and driveway);
McGuire v. Reilly, 260 F.3d 36, 49 (1st Cir. 2001) (upholding
18-foot fixed buffer zone around abortion clinics).

In Madsen, the Supreme Court considered the
constitutionality of a 36-foot buffer zone around the entrances
and driveways of an abortion clinic. 512 U.S. at 757. Due to its
size, the buffer zone limited opportunities for face-to-face
dialogue between protesters and clients. Id. Although the buffer
zone impeded conversation with clients, it was “narrow enough
to place petitioners [protesters] at a distance of no greater than
10 to 12 feet from cars approaching and leaving the clinic.” Id.
at 770. Hence, protesters could still voice their message and
display placards as drivers and passengers approached the clinic.
Because protesters “could still be seen and heard from the clinic
parking lots,” the Court concluded that protesters possessed
adequate alternatives to communicate their message. Id.

We find the alternative communication channels approved
in Madsen instructive here. As in Madsen, the restriction here
limits opportunities for conversation with clients using the rear
entrance of the Clinic. Nonetheless, McTernan possessed
options to make himself “seen and heard.” Id. Like the
protesters in Madsen, McTernan could verbalize his message or
direct visual placards at drivers entering Rose Alley. Standing
on the public sidewalk fronting the clinic, McTernan could
position himself within a few feet of cars turning into Rose

38
Alley – a distance less than that separating protesters and drivers
in Madsen. Because the alternatives available to McTernan to
communicate with his intended audience were equivalent to or
greater than those approved in Madsen, we conclude that
McTernan possessed adequate avenues to communicate with
clients, notwithstanding limitations on face-to-face comm-
unication. Hence, the District Court properly concluded that this
aspect of Ward was satisfied.12

III.

McTernan challenges the District Court’s dismissal of his
claim against the City of York based on Sergeant Barth’s alleged
violation of his First Amendment rights. Our jurisprudence is
clear that “[w]hen a suit against a municipality is based on §
1983, the municipality can only be liable when the alleged
constitutional transgression implements or executes a policy,
regulation, or decision officially adopted by the governing body
or informally adopted by custom.” Beck v. City of Pittsburgh, 89
F.3d 966, 971 (3d Cir. 1996) (citing Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658 (1978)). Monell thus
created a “two-path track” to municipal liability, depending on
whether a §1983 claim is premised on a municipal policy or
custom. Id.

In Andrews v. City of Philadelphia, we expanded on these

12
We do not address qualified immunity or McTernan’s right
to specific relief, as these issues were not decided by the District
Court. M.A. 29.

39
two sources of liability:

A government policy or custom can be established
in two ways. Policy is made when a
‘decisionmaker possess[ing] final authority to
establish a municipal policy with respect to the
action’ issues an official proclamation, policy, or
edict. A course of conduct is considered to be a
‘custom’ when, though not authorized by law, ‘such
practices of state officials [are] so permanently and
well-settled’ as to virtually constitute law.

895 F.2d 1469, 1480 (3d Cir. 1990) (quoted in Beck, 89 F.3d at
971) (citations omitted). Custom requires proof of knowledge
and acquiescence by the decisionmaker. Watson v. Abington
Twp., 478 F.3d 144, 154 (3d Cir. 2007); Beck, 89 F.3d at 971.

As noted above, Fed. R. Civ. P. 8(a)(2) “requires a
‘showing,’ rather than a blanket assertion, of entitlement to
relief” that rises “above the speculative level.” Phillips, 515
F.3d at 231-32 (quoting Twombly, 127 S.Ct. at 1965 & n. 3).
“Rule 8(a)(2) requires that the ‘plain statement’ possess enough
heft to ‘sho[w] that the pleader is entitled to relief.’” Id. at 231
(quoting Twombly, 127 S.Ct. at 1966).

Here, McTernan’s Monell claim rests on four allegations
in the complaint:

• “16. Despite the lack of violence, the City of York, its
Mayor and Police Chief, have routinely dispatched police
officers to Planned Parenthood at the behest of Planned

40
 Parenthood, to serve as private security guards for
Planned Parenthood. It is believed, and therefore averred,
that Planned Parenthood pays for these police officers and
directs their actions.” M.A. at 46.

• “33. Continuing through the present, Mr. McTernan and
others have been periodically threatened with arrest and
have on multiple occasions been told to leave the alley.”
M.A. at 50.

• “34. Mr. McTernan is chilled, frustrated and deterred in
the exercise of his First Amendment activities due to the
City’s policy of ignoring First Amendment right[s.]” M.A.
at 50.

• “35. All of the acts of the Defendants and their agents, as
alleged herein, were conducted under color and pretense
of the statutes, ordinances, regulations, customs, or usages
of the City of York or the Commonwealth of
Pennsylvania.” M.A. at 50.

The District Court concluded that McTernan failed to
satisfy the “rigorous standards of culpability and causation”
required for municipal liability. M.A. 8 (quoting Bd. of Comm’rs
of Bryan County v. Brown, 520 U.S. 397, 405 (1997)). We
agree.

As an initial matter, McTernan fails to specify the relevant
“custom” or “policy” here. To satisfy the pleading standard,
McTernan must identify a custom or policy, and specify what
exactly that custom or policy was. Phillips, 515 F.3d. at 232

41
(“We caution that without some factual allegation in the
complaint, a claimant cannot satisfy the requirement that he or
she provide not only ‘fair notice,’ but also the ‘grounds’ on
which the claim rests.”). Mere assertion of an entitlement to
relief, without some factual “showing,” is insufficient under
Fed. R. Civ. P. 8(a)(2). Id. The complaint, which gives no
notice as to the Defendants’ improper conduct, simply alleges
that McTernan’s rights were violated “due to the City’s policy
of ignoring First Amendment right[s.]” M.A. 50. This is not
sufficient.

Equally fatal, the four allegations in the complaint
relevant to McTernan’s Monell claim fail to allege conduct by
a municipal decisionmaker. Although McTernan maintains that
York officers “periodically” instructed protesters to exit the
alley, he does not plead knowledge of such directives by a
municipal decisionmaker, such as the Mayor or Police Chief.
There is no allegation that either the Mayor or the Police Chief
were aware of, let alone directed, the restrictions or participated
in formulating traffic abatement strategies at the Clinic. Nor do
the allegations support, indirectly, such an inference. The
complaint alleges nothing more than directives issued ad hoc by
individual officers, without reference to any formal
administrative or policy channels. Hence, the allegations are
deficient.

McTernan’s complaint simply paraphrases § 1983: “All of
the acts of the Defendants and their agents, as alleged herein,
were conducted under color and pretense of the statutes,
ordinances, regulations, customs, or usages of the City of York
or the Commonwealth of Pennsylvania.” M.A. 50. “[F]ormulaic

42
recitation of the elements of a cause of action will not do.”
Phillips, 515 F.3d at 231 (quoting Twombly, 127 S.Ct. at
1964-65). Because McTernan does not adequately plead a
custom or policy, or a link between the challenged restriction
and a municipal decisionmaker, the restriction cannot “fairly be
said to represent official policy,” warranting the imposition of
municipal liability. Pembaur v. City of Cincinnati, 475 U.S. 469,
480 (1986) (quoting Monell, 436 U.S. at 694). Accordingly, the
District Court properly dismissed McTernan’s Monell claim
against the City and official capacity suit against Defendants
Barth, Brenner, and Whitman.13

IV.

In light of the foregoing, we will AFFIRM the Order of
the District Court as to its dismissal of appellant’s municipal
liability claim and his official capacity claims against Sergeant
Barth, Mayor Brenner, and Police Commissioner Whitman.
Further, we will VACATE the Order of the District Court as to
the other counts of appellant’s complaint and REMAND to the
District Court for further proceedings in accordance with this
Opinion.

13
McTernan contends that Monell’s requirement that a § 1983
plaintiff establish a “custom or policy” does not apply to his
claim for injunctive relief. We do not resolve the issue here, as
the argument is made for the first time on appeal and was not
addressed by the District Court. M.A. 80.

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