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


4-27-2009

Holman v. York
Precedential or Non-Precedential: Precedential

Docket No. 07-4438




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Holman v. York" (2009). 2009 Decisions. Paper 1423.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1423


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 07-4438
   (Consolidated with Nos. 07-4437 and 07-4439)
                 _____________

               JOHN R. HOLMAN,
                        Appellant

                         v.

      CITY OF YORK, PENNSYLVANIA;
POLICE COMMISSIONER MARK L. WHITMAN,
               in his official capacity;
OFFICER KOLTANOVICH, 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-02300)
    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.
Suite 200
4660 Trindle Road
Camp Hill, PA 17011-0000

Randall L. Wenger, Esq. [ARGUED]
Suite 200
4660 Trindle Road
Camp hill, PA 17011
 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 17401-0000

__________________

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




                              2
James D. Young, Esq. [ARGUED]
Lavery, Faherty, Young & Patterson
225 Market Street, Suite 304
P. O. Box 1245
Harrisburg, PA 17108-0000
 Counsel for Appellees
 City of York, Pennsylvania;
 Police Commissioner Mark L. Whitman, in His Official
Capacity; and Officer Koltanovich

                          __________

                 OPINION OF THE COURT
                       __________

RENDELL, Circuit Judge.

        Appellant John Holman appeals from the District Court’s
grant of summary judgment and dismissal of his Monell claims
for municipal liability in this action pursuant to 42 U.S.C.
§ 1983. Appellant John Holman is a pro-life advocate who
regularly speaks to pregnant women as they enter the medical
clinic (hereinafter “Clinic”) of Planned Parenthood of Central
Pennsylvania (“Planned Parenthood”) in York, Pennsylvania.
Officer Koltunovich,1 a member of the City of York police


  1
    The caption in the case filed in the District Court identifies
the Defendant as “Officer Koltanovich.” The correct spelling of
Defendant’s surname is “Koltunovich,” as reflected in his
Unsworn Declaration. H.A. 294-97.

                                3
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, Holman
emphasizes the sanctity of the fetus, distributes pro-life
literature, and discusses alternatives to, and the health risks of,
abortion. Holman Appendix (“H.A.”) 356-57. Holman’s
activities emanate from deeply rooted Christian religious beliefs.
H.A. 355.

        This case and those of two other protesters at the Clinic
(McTernan v. City of York, No. 07-4437; and Snell v. City of
York, No. 07-4439) were consolidated for oral argument. Each
of the three appellants sued individually complaining of
restrictions on his First Amendment rights of speech, assembly,
and religious expression. Additionally, Holman and Snell
complain 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 therefore
write separately on each case, and we note that the analysis as it
relates to Holman differs from the others somewhat, based on
the nature of the government conduct at issue.

      The Clinic and its environs are described fully in our
Opinion in McTernan v. City of York, No. 07-4437, filed
concurrently herewith, and that description will not be repeated




                                 4
here.2

       On December 7, 2005, Officer Koltunovich was working
at the Clinic. That morning, as Holman was walking through
Rose Alley towards South Beaver Street, Officer Koltunovich
approached, positioning himself “toe to toe” with Holman. H.A.
193, 358.3 Officer Koltunovich then ordered Holman to “get out
of my space” and “verbally assault[ed]” him. H.A. 358, 193.
Officer Koltunovich returned to the intersection of Rose Alley
and South Beaver Street, after which Holman continued to
advocate in the alley, without any objection by Officer
Koltunovich. H.A. 190, 358, 362.4 At some point on the
morning of December 7, 2005, Officer Koltunovich cautioned
Holman that walking in Rose Alley could be hazardous. H.A.
200, 278. However, Holman testified that Officer Koltunovich
did not forbid his standing in the alley on that day or at any time
previously, H.A. 188-89, nor is there evidence that Officer



   2
     The basis of our jurisdiction, and the standard of review
applicable to the Court’s grant of summary judgment and
dismissal of certain counts of the complaint, are set forth in
McTernan v. City of York, No. 07-4437, which we expressly
incorporate herein.
   3
    These facts, derived from Holman’s deposition testimony
and sworn affidavit, are uncontested unless indicated to the
contrary.
   4
   The appendix reference at page 362, a DVD proffered by
Holman, depicts his conversation with Officer Koltunovich.

                                5
Koltunovich instructed other protesters to stay out of Rose Alley
on that day. Snell Appendix (S.A.) 175.

        Shortly thereafter, the two conversed again, this time near
the intersection of Rose Alley and South Beaver Street. Holman
was standing at the edge of the street near the Clinic’s front lot,
when a tractor-trailer made a “wide, sweeping turn” into the
alley from South Beaver Street. H.A. 283, 358, 361. To avoid
the truck, Holman stepped into the Planned Parenthood parking
lot; Officer Koltunovich immediately arrested him for trespass.
H.A. 239, 290. The charge for defiant trespass was dismissed
by the Magisterial District Judge.5 H.A. 229.

       Officer Koltunovich had previously warned Holman that
Planned Parenthood prohibited his entering the front lot, which
was its private property. H.A. 166-67, 173, 267-69, 296.
Holman acknowledged that he was aware that he was entering
Planned Parenthood property when he stepped onto the elevated
curb to avoid the truck. H.A. 239, 267-270, 272.

       Holman and Officer Koltunovich offered conflicting


  5
    The Commonwealth amended the charge from a summary
offense to a misdemeanor. Justice Haskell dismissed the charge
without explicitly stating his reason for doing so. His comments
at the hearing suggest either of two possibilities: the
prosecutor’s failure to meet the prima facie elements of the
offense, H.A. 289, or the applicability of an affirmative defense.
H.A. 288.


                                6
testimony as to the speed of the truck, the imminence of the
danger presented, and Holman’s alternatives to avoid a collision.
Holman testified that the truck was traveling at an unsafe speed,
and maintains that stepping briefly onto Planned Parenthood
property was his sole alternative to avoid a collision. Appellant’s
Br. at 32; H.A. 198. Officer Koltunovich, conversely, testified
that the truck, which came to “practically a dead stop,” did not
pose an “imminent danger” or present a “close call.” H.A.
239-40, 279. Officer Koltunovich also testified that Holman
could have avoided a collision by walking farther down the
alley, which was clear of traffic. H.A. 274-75, 277.

        As with McTernan and Snell, Holman asserts First
Amendment claims of free speech, assembly,6 and religious
expression.7 Unlike McTernan and Snell, however, Holman
fails to demonstrate any restriction on his First Amendment
rights. Holman acknowledges that he was granted unfettered
access to the alley, and that he exercised his First Amendment




  6
    Holman references his claim of right to assembly but does
not set forth a separate argument in his brief. For purposes of
our analysis, we conclude that this claim is encompassed in his
free speech claim.
  7
    The District Court granted summary judgment in favor of
Officer Koltunovich on all of Holman’s First Amendment
claims.

                                7
rights there, without objection by Officer Koltunovich.8 To the
extent that Holman does assert a restriction on his free speech
rights, it is based on his arrest for trespass. McTernan contends
that his arrest was motivated by a desire to suppress his pro-life
views, and chilled his First Amendment activity in the alley.9
We disagree. Although we are somewhat troubled by Holman’s
arrest for a de minimis offense, no evidence suggests that
Officer Koltunovich acted based on an improper motive, or that
the arrest would “deter a person of ordinary firmness from the
exercise of his First Amendment rights.” 10 See Suppan v.
Dadonna, 203 F.3d 228, 235 (3d Cir. 2000); Bennett v. Hendrix,



  8
    Finding that Officer Koltunovich prohibited Holman from
lingering in Rose Alley, the District Court analyzed the
constitutionality of such a restriction; we need not do so, as we
conclude that Holman’s use of the alley was not meaningfully
curtailed.
  9
     See, e.g., Tanner v. Heise, 879 F.2d 572, 580 n.5 (9th Cir.
1989) (holding that an arrest motivated by desire to suppress
religiously-motivated expression violates the First Amendment,
regardless of the procedural propriety of the arrest); Bailey v.
Andrews, 811 F.2d 366, 372 (7th Cir. 1987) (noting that arrest
motivated by desire to suppress a suspect’s speech is
unconstitutional, notwithstanding the existence of probable
cause for the arrest).
      10
         Holman acknowledges that, undaunted by Officer
Koltunovich’s “verbal assault,” he continued to advocate in the
alley. Appellant’s Br. at 10.

                                8
423 F.3d 1247, 1254 (11th Cir. 2005). To the contrary, Officer
Koltunovich granted Holman unfettered access to the alley,
permitting him to protest there without objection. Holman was
only arrested when he trespassed on Planned Parenthood
property, after repeated warnings that the lot was private
property. Hence, Holman’s “chill” argument – that he
reasonably feared police reprisal for exercising his First
Amendment rights – is unfounded. Holman had no reason to
fear police interference with his advocacy in the alley, provided
he respected Planned Parenthood’s property rights. Thus,
Holman fails to demonstrate a cognizable First Amendment
violation.

        Holman also challenges his arrest on Fourth Amendment
grounds. He contends that his arrest for trespass was not
supported by probable cause, because an affirmative defense –
the defense of necessity – clearly applied. Specifically, Holman
contends that stepping onto the private parking lot was
necessary to avoid colliding with a truck that had just turned into
the alley. He asserts that “the trespass statute is not applicable
when there exists the defense of necessity to prevent
Mr. Holman’s own bodily injury.” Appellant’s Br. at 24; see
18 Pa.C.S. § 503(a).

        Trespass under 18 Pa.C.S. § 3503(b)(1)(i) requires proof
that the defendant, “knowing that he is not licensed or privileged
to do so, . . . enters or remains in any place as to which notice
against trespass is given by . . . actual communication to the
actor.” The District Court concluded that Holman’s arrest was
lawful for three reasons.


                                9
First, the District Court noted that Holman all but conceded that
Officer Koltunovich had a reasonable basis for concluding that
the elements of the charged offense were met. The Court
reasoned that Officer Koltunovich had previously advised
Holman that the front parking lot was private property owned or
leased by Planned Parenthood, and that Planned Parenthood did
not want Holman trespassing there. Further, Holman admitted
that, based on these instructions and his approximately a dozen
trips to the facility, he knew which locations were private
property and which locations were public, and was aware that
the elevated curb onto which he stepped was private property.
H.A. 31, 166-67, 239, 267-270, 272.

        Second, citing Sands v. McKormick, 502 F.3d 263, 269
(3d Cir. 2007), the District Court held that, as a matter of law,
probable cause exists when an officer reasonably believes that
the elements of the charged offense have been met, regardless
of whether an affirmative defense appears to apply: “First,
justification or necessity is an affirmative defense. In making
the ‘fundamentally . . . factual analysis . . . at the scene,’ such
affirmative legal defenses are not a relevant consideration in an
officer’s determination of probable cause.” H.A. 32. Thus, the
District Court reasoned that Officer Koltunovich had probable
cause to arrest Holman, independent of affirmative defenses that
Officer Koltunovich knew, or should have known, exonerated
Holman.

       Third, the District Court found that, even assuming,
arguendo, that an arresting officer must consider the
applicability of affirmative defenses in determining whether
probable cause exists, the necessity defense likely did not apply.

                                10
Indeed, Holman, previously apprised of the danger posed by
vehicular traffic, could have anticipated that trespassing on
Planned Parenthood property would be necessary to avoid
vehicles traveling through the alley. Further, it was not
necessary for Holman to protest in the alley because numerous,
safer locations existed from which to convey his pro-life views.
The District Court analogized the case before it to Northeast
Women’s Ctr. v. McMonagle, 868 F.2d 1342, 1352 (3d Cir.
1989), where we determined that protesters trespassing at an
abortion clinic were not entitled to a necessity defense, because
the protesters possessed lawful alternatives, other than
trespassing on clinic property, to prevent the harm
identified—the performance of abortions. We reasoned that
protesters could have voiced their pro-life views equally
effectively from the public sidewalks around the clinic. Id.
Here, the District Court observed, similarly, that Holman could
have safely exercised his First Amendment rights on the public
sidewalks around the Clinic, thereby avoiding the hazards of the
alley.

        Although Holman concedes that all elements of a prima
facie case for trespass were met, he articulates two objections to
the District Court’s determination of probable cause. First,
Holman argues that Sands did not make all affirmative defenses
irrelevant to the probable cause determination. Rather, Sands
merely relieved officers of the obligation to inquire about the
single affirmative defense at issue there—the statute of
limitations. We emphasized in Sands that police officers, who
lack legal training, could not reasonably be expected to calculate
the applicable tolling period. Holman argues that trespass is
different, because no legal training is required for police to

                               11
determine whether a defendant’s trespass is justified by
necessity. Unlike the statute of limitations, the necessity
defense has straightforward elements, and an officer’s
immediate observations are often sufficient to determine
whether its requirements are met. Thus, he urges, neither the
holding nor the reasoning of Sands categorically relieves an
arresting officer of the duty to determine whether an affirmative
defense applies to the defendant’s conduct.

        Second, Holman distinguishes McMonagle from the case
before us. Unlike the defendants in McMonagle, who could
protest abortions without trespassing on clinic property, Holman
lacked lawful alternatives to avoid the specific harm that he
confronted—being struck by an approaching truck. He contends
that stepping onto the Planned Parenthood parking lot was his
sole option to avoid an accident.

        We cannot conduct an informed inquiry into this issue
without noting that, in another case, Radich v. Goode, 886 F.2d
1391, 1396 (3d Cir. 1989) (not cited by the parties), we assumed
for the sake of argument, without deciding, that the existence of
an affirmative defense was relevant to the determination of
probable cause. There, we considered whether probable cause
existed to arrest a defendant for defiant trespass, where the
defendant pled, as an affirmative defense, that (1) the premises
were open to the public, and (2) the condition imposed by the
property owners was unlawful. 18 Pa. C.S. § 3503. Rather than
holding that the proffered defense was irrelevant to the officer’s
determination of probable cause as a matter of law, we assumed
arguendo that the applicability of the defense bore on the
probable cause determination. Radich, 886 F.2d at 1396. We

                               12
then framed the dispositive inquiry as whether an officer,
“acting reasonably . . . under the facts and circumstances”
known to him, would conclude that the affirmative defense
applied. Id. at 1396-97. If the answer was yes, then probable
cause did not exist. There, because the defendant could not
prove that a reasonable officer, based on the facts before him,
would believe that the condition imposed by the property owners
was unlawful, the defendant’s arrest was supported by probable
cause. Id. at 1398.

        However, Radich is distinguishable, because the two
affirmative defenses urged by the defendant were specifically
included in the statute setting forth the elements of the crime.
That is, the statute specifically stated that the proscribed conduct
was not criminal if these two aspects were present. Here, that is
not the case. The “necessity” defense urged here appears in a
separate section of the Pennsylvania criminal code, § 503,
defining the general principles of justification. Significantly, §
503 is not explicitly referenced in § 3503(b)(1), which details
the elements of defiant trespass.

        In Sands, we concluded that the affirmative defense of
the statute of limitations need not be considered by an arresting
officer in determining probable cause. We suggested that it was
a “faulty premise” to urge that affirmative defenses, such as the
statute of limitations, are necessarily relevant at the time a police
officer files charges. 502 F.3d at 269. Rather, we indicated that
generally “affirmative defenses are to be ruled upon by a court
of competent jurisdiction.” Id. We bolstered our reasoning in
Sands by noting that statute of limitations is not a “clear cut”
matter in a criminal prosecution. Id. Here, similarly, whether

                                 13
Holman’s movement in a certain direction, and onto private
property, was “necessary” is not clear cut and is essentially an
issue of fact. Indeed, whereas Holman contends that the truck
was approaching at an “unsafe” speed, forcing him to step onto
the Planned Parenthood parking lot to avoid a collision, H.A.
198, 229, 278, Officer Koltunovich maintains that the truck was
“practically at a dead-stop,” and that Holman could have
avoided an accident by simply walking farther down the alley.
H.A. 239-40, 274-75, 278. Requiring Officer Koltunovich to
resolve these questions, and painstakingly to weigh possible
defenses, would be impractical, particularly given the rapidity
with which the events transpired here.

        Just as the statute of limitations in Sands requires an
analysis of legal considerations that should not concern an
arresting officer, the “necessity” defense urged here requires an
officer to resolve equally daunting issues. An arresting officer
would need to examine countless factual permutations to
determine the “necessity” of specific conduct at a given moment
in time. We do not endorse the District Court’s statement that
affirmative defenses are “not a relevant consideration” – as we
have never so held – but we do conclude that, here, the defense
of necessity need not have been considered in the assessment of
probable cause for arrest for trespass at the scene. Because
Officer Koltunovich had probable cause to arrest Holman for
trespass, his Fourth Amendment claim fails.11


 11
    We also reject Holman’s alternative argument – that Officer
Koltunovich used excessive force. Holman contends, “When an
arrest is illegal to begin with, any force used is excessive.”

                               14
        Finding no violation of Holman’s First and Fourth
Amendment rights, we will AFFIRM the grant of summary
judgment. Also, for the reasons set forth in McTernan v. City of
York, No. 07-4437, which we expressly incorporate herein, we
will AFFIRM the District Court’s order dismissing Holman’s
municipal liability claims against the City of York and his
official capacity claims against Officer Koltunovich, Mayor
Brenner, and Police Commissioner Whitman, as the allegations
in Holman’s complaint mirror those in McTernan’s.12




Appellant’s Br. at 32. Holman’s excessive force claim hinges,
therefore, on the legality of the initial arrest. Because we
conclude that Officer Koltunovich had probable cause to arrest
Holman for trespass, we reject his derivative claim for excessive
force.
  12
     Holman’s municipal liability claims would have inevitably
failed at the summary judgment stage, since we conclude that no
constitutional deprivation occurred.

                               15
