United Artists Theatre Circuit, Inc v. the Township of Warrington, Pa

PRECEDENTIAL
Filed February 25, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3533
UNITED ARTISTS THEATRE CIRCUIT, INC.
v.
THE TOWNSHIP OF WARRINGTON, PA; GERALD B.
ANDERSON; JOSEPH E. LAVIN; DOUGLAS E. SKINNER;
WAYNE S. BULLOCK; KATHERINE M. WATSON
Gerald B. Anderson; Joseph E. Lavin; Douglas E. Skinner;
Wayne S. Bullock; Katherine M. Watson,
Appellants
SUR PETITION FOR REHEARING
Present: BECKER, Chief Judge, SLOVITER, SCIRICA,
NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY,
AMBRO, FUENTES, SMITH and LOURIE,* Circuit Judges,
and COWEN,* Senior Circuit Judge
(Filed: February 25, 2003)
The petition for rehearing filed by appellee in the above
entitled case having been submitted to the judges who
participated in the decision of the court and to all the other
available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of
the circuit in regular active service not having voted for
* Judges Lourie and Cowen as to panel rehearing only.

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rehearing by the court en banc, the petition for rehearing is
denied. Judge Nygaard would have granted rehearing en
banc. Judge Cowen would have granted panel rehearing.
By the Court,
/s/ Anthony J. Scirica
Circuit Judge
Dated: February 25, 2003
OPINION SUR DENIAL OF REHEARING
NYGAARD, Circuit Judge:
I agree with Judge Cowen’s persuasive dissent and would
grant United Artists’ petition for rehearing. I write
separately to emphasize the inherent problems with reading
Sacramento v. Lewis as creating a blanket “shocks the
conscience” standard for all substantive due process
claims.
Sacramento v. Lewis restated the long held precept that
only the most egregious official conduct is
unconstitutionally arbitrary. 523 U.S. 833, 846 (1998). In
addressing the standard for a substantive due process
claim, the Court noted that it was “behavior at the
[extreme] end of the culpability spectrum that would most
probably support a substantive due process claim.” Id. at
849. The Court considered the deliberate indifference
standard as it applied to substantive due process cases and
stated that “[d]eliberate indifference that shocks in one
environment may not be so patently egregious in another”
and that the Constitution demanded an analysis of the
circumstances of each case to determine what is
conscience-shocking. Id. at 850. Specifically, in light of the
high speed police chase in the case, the Court considered
how the term “deliberate indifference” could be applied in a
case where actual deliberation was not practical. Id. at 851
and n.11. We have correctly followed this logic and applied
this analysis to all cases where state actors had to act with
urgency. See e.g., Brown v. Commonwealth of Pennsylvania,
2003 U.S. App. LEXIS 953, *13-17 (3d Cir. 2003).
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Therefore, in cases where the state actor acts with urgency
— where the state actor does not have time to “deliberate”—
“shocks the conscience” is a fixed standard, and varying
degrees of behavior in different contexts may rise to the
conscience shocking level. In this way, the deliberate
indifference test survives and may be conscience shocking
in one circumstance, but not another.
However, by expanding “shocks the conscience” beyond
those non-deliberative circumstances, the test no longer
acts to aid the court in determining whether the potentially
unconstitutional action of the state actor is excused.
Instead, it raises the bar for plaintiffs to state a claim. This
case is a perfect example. The District Court here held that
there was enough evidence to allow a fact finder to
conclude that the Board intentionally penalized the plaintiff
because it refused to pay the “impact fee.” “If proved the
[District Court] believes the monetary motivation of the
Board was improper and would constitute a violation of
substantive due process.” United Artists Theatre Circuit, Inc.
v. Township of Warrington, 2003 U.S. App. LEXIS 515, * 8
(3d Cir. 2002) (quoting the District Court’s August 15, 2001
order). As in the cases where the state actor must act with
urgency, the ultimate question is whether the actor’s
behavior is egregious enough to constitute a due process
violation. Those actions carried out with improper motive
would be so egregious, so shocking as to violate the
Constitution. See Sacramento, 523 U.S. at 849. “Conduct
intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely
to rise to the conscience-shocking level.” Id. In this way,
there is a distinction between a “shocks the conscience”
test and the idea of crossing the threshold of egregiousness
(i.e., reaching the conscience-shocking level).
“Shocks the conscience” is useful in due process cases
where the actor cannot deliberate. In those situations,
exigencies may excuse deliberate indifference. Land use
decisions are not made in the heat of the moment without
ability to deliberate. Instead, they are (or should be)
deliberate decisions made after proper consideration. The
appropriate standard, as repeatedly articulated before and
after Lewis is “improper motive.” See United Artists, 2003
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U.S. App. LEXIS 515 at *18-19 (collecting cases); id. at *35-
38 (same) (Cowen, J. dissenting); see also Sacramento, 523
U.S. at 849 (“Historically, this guarantee of due process has
been applied to deliberate decisions of government officials
to deprive a person of life, liberty, or property.” (quoting
with approval from Daniels v. Williams, 474 U.S. 327, 331
(1986) (emphasis in original)).
A ubiquitous “shocks the conscience” test will only create
confusion among the district courts, lessen the protection
that individuals have against arbitrary government action,
and undercut due process. According to the Supreme
Court, “after volumes spoken and written with a view to
their exposition, the good sense of mankind has at last
settled down to this: that [the principles of due process]
were intended to secure the individual from the arbitrary
exercise of the powers of government, unrestrained by the
established principles of private right and distributive
justice.” Sacramento, 523 U.S. at 845 (quoting Hurtado v.
California, 110 U.S. 516, 527 (1884)). Because we should
leave settled our case law, both before and after Sacramento
v. Lewis, and find that the “improper motive” test is the
appropriate test here, I would grant United Artists’ petition
for en banc rehearing.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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