Nos. 02-3947/4158 DENNIS L. BLACKHAWK v. Commonwealth of Pennsylvania

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-3947/4158
DENNIS L. BLACKHAWK
v.
COMMONWEALTH OF
PENNSYLVANIA;
PENNSYLVANIA GAME
COMMISSION; VERNON ROSS,
Director;
THOMAS R. LITTWIN, Law Enf.
Director; FREDERICK
MERLUZZI, Enf. Officer; BARRY
HAMBLEY; DAVID E. OVERCASH,
in their individual and official capacities
Vernon Ross
Thomas Littwin
David E. Overcash,
Appellants, No. 02-3947
__________________
DENNIS L. BLACKHAWK,
Appellant, No. 02-4158
v.
COMMONWEALTH OF
PENNSYLVANIA; PENNSYLVANIA
GAME COMMISSION;
VERNON ROSS, Director; THOMAS
R. LITTWIN, Law Enf. Director;
FREDERICK MERLUZZI, Enf. Officer;
BARRY HAMBLEY;
DAVID E. OVERCASH, in their
individual and official
capacities;
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
PENNSYLVANIA
(Dist. Court No. 99-cv-02048)
District Court Judge: Hon. Thomas I.
Vanaskie
Argued: July 21, 2003
Before: ALITO and FUENTES, Circuit
Judges, and SURRICK,* District Judge.
(Opinion Filed: August 20, 2004 )
D. MICHAEL FISHER
HOWARD G. HOPKIRK (Argued)
CALVIN R. KOONS
JOHN G. KNORR, III
Office of Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
* The Hon. R. Barclay Surrick,
United States District Judge for the
Eastern District of Pennsylvania, sitting by
designation.

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Harrisburg, Pa. 17120
Counsel for Appellants/Cross-Appellees
GARY S. GILDIN (Argued)
150 South College Street
Carlisle, Pa. 17013
THOMAS B. SCHMIDT, III
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, Pa. 17108-1181
Counsel for Appellee/Cross-Appellant
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal by officials of the
Pennsylvania Game Commission from an
order permanently enjoining them from
enforcing a permit fee provision of the
state Game and Wildlife Code against
Dennis Blackhawk on the ground that the
Commission’s current waiver policy
violates his right to the free exercise of
religion. Blackhawk in turn cross-appeals
the District Court’s holding that the Game
Commission officials are not personally
liable for violating his rights. We affirm
the District Court in both respects.
I.
Lakota Indians believe that black
bears protect the Earth, sanctify religious
ceremonies, and imbue worshipers with
spiritual strength. Although Blackhawk is
a Lenape Indian by birth, he was adopted
by elders of the Oglala Lakota and Seneca
tribes, who schooled him in the religious
traditions of the Lakota and Iroquois
people. When Blackhawk began to see
bears in a recurring dream, Lakota tribal
elders concluded that the dream was a
prophesy and predicted that Blackhawk
would derive spiritual power from the
animals.
In 1994, Blackhawk purchased two
black bear cubs, a male and a female
named Timber and Tundra. He moved to
Pennsylvania in 1995 and began
conducting religious ceremonies with the
bears on his property. Members of various
American Indian tribes visit Blackhawk
from across the country to participate in
these rituals. Due to Blackhawk’s
stewardship of the bears and his role in
these ceremonies, some consider him to be
a holy man.
The Pennsylvania Game and
Wildlife Code requires permits in order to
engage in a variety of different activities,
including such things as bird banding (34
Pa. Cons. Stat. Ann. § 2921), falconry (34
Pa. Cons. Stat. Ann. § 2925), various types
of field dog trials (34 Pa. Cons. Stat. Ann.
§ 2943), fox chasing (34 Pa. Cons. Stat.
Ann. § 2945), maintaining a “menagerie”
(34 Pa. Cons. Stat. Ann. § 2964), and
either dealing in or possessing “exotic
wildlife.” 34 Pa. Cons. Stat. Ann. §§
2962, 2963. Annual fees ranging from $25
to $300 are collected for these permits, see
34 Pa. Cons. Stat. Ann. § 2904, and the
revenues from all of these fees comprise

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about one percent of the Game
Commission’s annual intake.
Although persons wishing to keep
wildlife in captivity must generally obtain
a menagerie or exotic wildlife possession
permit and pay the requisite fee, see 34 Pa.
Cons. Stat. Ann. §§ 2904, 2964(c)(1), the
Code excludes from these requirements
most zoos and all “[n]ationally recognized
circus[es].” 34 Pa. Cons. Stat. Ann. §
2965(a)(1)–(3). In addition, the director of
the Game Commission is authorized to
waive a permit fee “where hardship or
extraordinary circumstance warrants,” so
long as the waiver is “consistent with
sound game or wildlife management
activities or the intent of [the Game and
Wildlife Code]” 34 Pa. Cons. Stat. Ann. §
2901(d).
From 1995 to 1999, Blackhawk
obtained permits to own the bears. At
first, he acquired a “menagerie permit,”
but bears are classified under the Game
and Wildlife Code as “exotic wildlife,” see
34 Pa. Cons. Stat. Ann. § 2961, and special
permits are required for those wishing to
deal in or possess exotic wildlife. See 34
Pa. Cons. Stat. Ann. §§ 2904, 2962, 2963.
Beginning in 1997, the Game Commission
insisted that Blackhawk obtain an exotic
wildlife dealer permit, which costs $200
per year, see 34 Pa. Cons. Stat. Ann. §
2904, because Frederick Merluzzi, a
wildlife conservation officer, believed that
Blackhawk intended to breed the bears and
sell their cubs. If Blackhawk did not wish
to deal in bears but merely to keep them,
he needed only an exotic wildlife
possession permit, for which the annual
fee is $50. See 34 Pa. Cons. Stat. Ann. §
2904.
In 1998, Blackhawk sought an
exemption from the permit fee on the
ground that he possessed the bears for
Native American religious purposes. After
making an inquiry to the Bureau of Indian
Affairs, Merluzzi informed Blackhawk
that Native Americans who possess a
Bureau of Indian Affairs identification
card are entitled to some exemptions under
federal law, but Blackhawk did not possess
such a card. Blackhawk paid the 1998 fee
under protest after citing his religious
purpose and alleging financial hardship.
He then wrote to his representative in the
state legislature, Keith McCall, and
McCall intervened and asked Commission
director Vernon Ross to oversee the
situation personally. On October 6, 1999,
Blackhawk received a letter from
Commission officials Thomas Littwin and
David Overcash informing him that he did
not qualify for a waiver under 34 Pa. Cons.
Stat. Ann. § 2901(d) because the
Commission regarded the keeping of wild
animals in captivity as inconsistent with
sound game and wildlife management
activities unless the animals were intended
for release into the wild. Since Timber
and Tundra had been declawed and had
been kept in captivity their entire lives,
they could not be released into the wild.
“Thus, in the Commission’s view,
Blackhawk [was] not entitled to an
exemption regardless of his financial
circumstances.” Black Hawk v.
Pennsylvania, 225 F. Supp. 2d 465, 470
(M.D. Pa. 2002). The letter from Littwin

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and Overcash told Blackhawk that,
because his permit had expired on June 30,
1999, if he still possessed the bears he was
subject to prosecution.
Blackhawk responded by again
requesting a waiver, and in November of
1999, Merluzzi filed criminal charges
against Blackhawk for failing to renew.
Blackhawk filed an action under 42
U.S.C. § 1983, seeking to enjoin the Game
Commission from assessing the fee or
confiscating the bears and also seeking
money damages from Merluzzi, Overcash,
Littwin, Hambley, and Ross. Prior to the
District Court’s disposition of the case, a
state magistrate found Blackhawk guilty of
the criminal charges and assessed a
$178,400 fine, which he later reduced to
$6,442. However, the Court of Common
Pleas stayed the criminal case pending a
ruling on Blackhawk’s § 1983 action.
In August of 2000, Blackhawk
discovered that the bears’ enclosure had
been vandalized, that the locks on the
enclosure had been cut, and that the
animals were missing. A neighbor
encountered Tundra on his property and
was attempting to lead the bear back to the
pen when Tundra bit him. The neighbor
alerted the Game Commission, which
tracked the bears and tranquilized them.
An official who was attempting to restrain
Tundra was also bitten by the bear, but the
Commission succeeded in taking both
bears into custody. It then sought to
destroy the bears pursuant to a regulation
requiring wild animals who have bitten
humans to be decapitated in order to be
tested for rabies. See 28 Pa. Code §
27.103(f)(2). The District Court enjoined
the Commission from destroying the bears
and ordered their return. See Black Hawk
v. Pennsylvania, 114 F. Supp. 2d 327
(M.D. Pa. 2000).
When the District Court reached the
merits of the civil case, it held that the
Game Commission’s refusal to exempt
religiously motivated activities from the
permit fee violated the First Amendment’s
Free Exercise Clause. See Black Hawk,
225 F. Supp. 2d at 465. The Court held
that the permit fee requirement was not a
“‘valid and neutral law of general
applicability’” under Employment Div.,
Dep’t of Human Resources of Oregon v.
Smith, 494 U.S. 872, 879 (1990), because
the statutory waiver established a “‘system
of individualized exceptions.’” Black
Hawk, 225 F. Supp. 2d at 473. The Court
accordingly applied strict scrutiny to the
waiver scheme, id. at 472–73, and held
that the scheme could not withstand strict
scrutiny because the Commission was
unable to “demonstrate a compelling
interest in refusing to grant a religious
exemption.” Id. at 477. The District Court
a c co r d i n g l y e n jo i n e d t h e G a m e
Commission from charging Blackhawk a
permit fee. However, the Court declined
to hold the individual defendants liable
under § 1983 because it found that
Merluzzi and Hambley were not personally
responsible for violating Blackhawk’s
rights and that Ross, Littwin, and
Overcash were entitled to qualified
immunity.
On appeal, the Commission argues

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that the First Amendment does not entitle
Blackhawk to a waiver, and Blackhawk
contends that the District Court erred in
granting summary judgment in favor of the
individual defendants. We exercise
plenary review over a grant of summary
judgment, Northview Motors, Inc. v.
Chrysler Motors Corp., 227 F.3d 78,
87–88 (3d Cir. 2000), and likewise review
de novo the District Court’s interpretation
of the Constitution. United States v.
Scarfo, 263 F.3d 80, 91 (3d Cir. 2001).
II.
A.
Blackhawk’s free exercise claim
requires us to apply the Supreme Court’s
decisions in Employment Div., Dep’t of
Human Resources of Oregon v. Smith,
supra, and Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U.S. 520 (1993)
(“Lukumi”), and our decisions in Fraternal
Order of Police v. City of Newark, 170
F.3d 359 (3d Cir. 1999) (“Fraternal Order
of Police”), and Tenafly Eruv Ass’n, Inc.
v. Borough of Tenafly, 309 F.3d 144 (3d
Cir. 2002) (“Tenafly”). Based on these
decisions, we agree with the District Court
that Blackhawk’s free exercise rights were
violated.
In Smith, the Supreme Court
opened a new chapter in the interpretation
of the Free Exercise Clause. The Court
began by reaffirming the principle that the
Clause prohibits “all ‘governmental
regulation of religious beliefs as such.’”
494 U.S. at 877 (quoting Sherbert v.
Verner, 374 U.S. 398, 402 (1963))
(emphasis in Sherbert). The Court held,
however, that most laws that burden
religiously motivated conduct stand on a
different footing. Rejecting the argument
that such laws must generally satisfy strict
scrutiny, the Court concluded that the First
Amendment is not ordinarily offended by
“neutral” and “generally applicable” laws
that merely have “the incidental effect” of
burdening religiously motivated conduct.
494 U.S. 878, 879, 881.
The Court recognized several
exceptions to this rule. First, the Court did
not overrule prior decisions in which
“hybrid claims” (i.e., claims involving “not
the Free Exercise Clause alone, but the
Free Exercise Clause in conjunction with
other constitutional protections”) had
prevailed against “neutral, generally
applicable law[s].” Id. at 881 (citations
omitted). Nor did the Court overrule
Sherbert and other decisions that
“ i n v a li d a t ed sta t e u ne m p l o y m e nt
compensation rules that conditioned the
availability of benefits upon an applicant’s
willingness to work under conditions
forbidden by his religion.” Id. at 883.
Finally, the Court observed that even if it
“were inclined to breathe into Sherbert
some life beyond the unemployment field,
[the Court] would not apply it to require
exemptions from a generally applicable
criminal law.” Id. at 884. The Court
wrote:
The Sherbert test, it must be
recalled, was developed in a
context that lent itself to
individualized governmental
assessment of the reasons
for the relevant conduct. . . .

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[O]ur decisions in
the unemployment
cases stand for the
p r o p o s i ti o n t h a t
where the State has
in place a system of
i n d i v i d u a l
exemptions, it may
not refuse to extend
that system to cases
o f ‘ r e l i g i o u s
hardship’ without
compelling reason.
Id. at 884 (citation omitted).
In Lukumi, the Court applied Smith
to a web of city ordinances that interfered
with the practice of Santeria, a religion
that employs the sacrifice of animals in its
rituals. The ordinances prohibited the
killing of animals in Santeria rituals but
excluded almost all other animal killings,
including killings that occurred in
connection with hunting, fishing, meat
production, pest extermination, euthanasia,
and the use of rabbits to train greyhounds.
Id. at 536-37. The Court held that these
“gerrymandered” ordinances were neither
“neutral” nor “generally applicable,” id. at
533-46, and that they could not withstand
strict scrutiny. Id. at 546-47.
The Lukumi Court’s discussion of
the requirement of general applicability is
particularly important for present
purposes. While the Court did not attempt
to “define with precision the standard used
to evaluate whether a prohibition is of
general application,” id. at 543, the Court’s
discussion of the requireme nt is
instructive. The principal ordinances
challenged in Likumi were claimed to
advance two interests – preventing cruelty
to animals and protecting public health --
but the Court concluded that the
ordinances failed the general applicability
s t a n d a r d b e c a u s e t h e y w e r e
“underinclusive for [their asserted] ends”
and “[t]he underinclusion [was]
substantial, not inconsequential.” Id. at
543. The Court explained that the
ordinances were “underinclusive” because
they “fail[ed] to prohibit nonreligious
conduct that endanger[ed] these interests
in a similar or greater degree than Santeria
sacrifice does.” Id. The Court added:
The ordinances “ha[ve]
every appearance of a
prohibition that society is
prepared to impose upon
[Santeria worshippers] but
not upon itself.” . . . This
precise evil is what the
requirement of general
applicability is designed to
prevent.
Id. at 545-46 (quoting Florida Star v.
B.J.F., 491 U.S. 524, 542 (1989) (Scalia, J.
concurring in part and concurring in
judgment) .
Applying these precedents, we held
in Fraternal Order of Police that the Free
Exercise Clause was violated by a city’s
practice of prohibiting police officers from
wearing beards for religious reasons but
allowing officers to wear beards for
medical reasons. See 170 F.3d at 364-67.
In reaching this conclusion, we drew on

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both the Cour t ’ s discussion of
“individualized exemptions” and the
general applicability requirement. Id. at
364-66. We explained that a system that
permits individualized, discretionary
exemptions provides an opportunity for the
decision maker to decide that “secular
motivations are more important than
religious motivations” and thus to give
disparate treatment to cases that are
otherwise comparable. 170 F.3d at 365.
“If anything,” we stated, “this concern is
only further implicated when the
government does not merely create a
mechanism for individualized exemptions,
but instead, actually creates a categorical
exemption for individuals with a secular
objection but not for individuals with a
religious objection.” Id. Concluding that
the policy in question was suspect for
precisely this reason, we wrote:
[T]he medical exemption
raises concern because it
i n d i c a t e s t h a t t h e
Department has made a
value judgment that secular
(i.e., medical) motivations
for wearing a beard are
i m p o r t a n t e n o u g h t o
overcome its general interest
in uniformity but that
religious motivations are
not. . . . [W]hen the
government makes a value
judgment in favor of secular
m o t i v at i o n s , b u t n o t
religious motivations, the
government’s actions must
survive heightened scrutiny.
Id. at 366. We therefore applied strict
scrutiny and held that the no-beards policy
could not satisfy that standard. Id. at 366-
67.
In Tenafly, we considered a local
ordinance that was neutral and generally
applicable on its face but that had been
enforced in a discriminatory manner. See
309 F.3d at 167-72. The ordinance banned
the placement of any “‘sign or
advertisement, or other matter upon any
pole, tree, curbstone, sidewalk or
elsewhere, in any public street or public
place, excepting such as may be authorized
by this or any other ordinance of the
Borough.’” 309 F.3d at 151 (citation
omitted). The local government, however,
had permitted the placement on utility
poles of many types of signs and symbols,
including house number signs, signs
pointing the way to area churches, lost
animal signs, holiday symbols, and orange
ribbons signifying opposition to school
regionalization. Id. at 151. By contrast,
the local government refused to permit
Orthodox Jews to place lechis on utility
poles in order to construct an eruv, a
ceremonial demarcation of an area within
which Orthodox Jews may push or carry
objects on the Sabbath. Id. at 152. We
thus held that “the Borough’s selective,
discre tionary applic atio n of [the
ordinance] violates the neutrality principle
of Lukumi and Fraternal Order of Police
because it ‘devalues’ Orthodox Jewish
reasons for posting items on utility poles
by ‘judging them to be of lesser import
than nonreligious reasons,” and thus
‘single[s] out’ the plaintiffs’ religiously

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motivated conduct for discriminatory
treatment.” Id. at 168 (quoting Lukumi,
508 U.S. at 537, and Fraternal Order of
Police, 170 F.3d at 364-65 (footnote
omitted)).
The teaching of Smith, Lukumi,
Fraternal Order of Police, and Tenafly may
be summarized as follows. The Free
Exercise Clause forbids any regulation of
beliefs as such. See Lukumi, 508 U.S. at
533; Smith, 494 U.S. at 877. On the other
hand, with the exceptions noted above, a
“neutral” and “generally applicable” law
that burdens conduct regardless of whether
it is motivated by religious or secular
concerns is not subject to strict scrutiny.
See Lukumi, 508 U.S. at 546; Smith, 494
U.S. at 878. A law is “neutral” if it does
not target religiously motivated conduct
either on its face or as applied in practice.
See Lukumi, 508 U.S. at 533-40; Tenafly,
309 F.3d at 167. A law fails the general
applicability requirement if it burdens a
category of 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. Lukumi, 508 U.S.
at 543-46; Fraternal Order of Police, 170
F.3d at 364-66. If a law burdening
religiously motivated conduct is not
neutral and generally applicable it must
satisfy strict scrutiny. See Lukumi, 508
U.S. at 546; Smith 494 U.S. at 878.
Accordingly, it must serve a compelling
government interest and must be narrowly
tailored to serve that interest. Lukumi, 508
U.S. at 546. Similarly, a law must satisfy
strict scrutiny if it permits individualized,
discretionary exemptions because such a
regime creates the opportunity for a
facially neutral and generally applicable
standard to be applied in practice in a way
that discriminates against religiously
motivated conduct. Lukumi, 508 U.S. at
537; Smith, 494 U.S. at 884, Fraternal
Order, 170 F.3d at 364-65.
B.
The fee requirement at issue here
fails the general applicability requirement
for two reasons. First, the Game Code
creates a regime of individualized,
discretionary exemptions that is not
materially distinguishable from those that
triggered s t r ic t s c ru t i n y in th e
unemployment compensation cases.
Under the laws involved in those cases,
benefits were generally denied if a person
had quit or refused work, but
individualized exemptions were available
for persons who had quit or refused work
for “good cause.” See Smith, 494 U.S. at
884. Under 34 Pa. Cons. Stat. Ann. §
2901(d), a person may obtain a waiver
from the fee requirement if the person
shows “hardship” or “extraordinary
circumstances” and the w aiver is
consistent with “sound game or wildlife
management activities or the intent of [the
Game and W ildlife Code].” Blackhawk
does not claim that he is entitled to an
e x e m p t i o n f r o m t h e “ h a rd s h i p ”
requ ireme nt, and the regulation’s
remaining requirements – consistency with
sound game or wildlife management
activities or the intent of Code – are

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sufficiently open-ended to bring the
regulation within the individualized
exemption rule.
The Commonwealth contends,
however, that the regulation categorically
rules out waivers for persons, like
Blackhawk, who wish to keep animals for
religious reasons. This is so, the
Comm onw ealth maintains, because
keeping animals for religious reasons is
not consistent with state wildlife policy. In
s u p p o r t o f t h is a r g u m e n t , t h e
Commonwealth relies on the following
passage from the declaration of a Game
Commission official:
T h e Legislature h a s
d e l e g a t e d t h e G a m e
C o m m i s s i o n t h e
responsibility to “protect,
propagate, manage and
preserve the game or
w i l d l i f e o f t h i s
Commonwealth.” 34 Pa.
C.S. § 321. The Game
C o m m i s s io n n o r m a l l y
considers the keeping of live
animals in captivity as being
inconsistent with sound
g a m e a n d w i l d l i f e
management, or the overall
purpose of the Game Code.
This is because in general
keeping animals in captivity
does not provide any
positive benefit to the
welfare of populations of
wildlife which live in their
natural state within the
Commonwealth. The only
exception would be where
such activity is done with
the intent of reintroducing
those animals - or their
offspring - into the wild; the
animals are members of an
endangered species; or the
keeping of the animals in
captivity provides some
other tangible benefit for the
welfare and survival of
Pennsylvania’s existing
wildlife population.
App. 121-22 (emphasis added).
This passage is insufficient to show
that 34 Pa. Cons. Stat. Ann. § 2901(d)
does not create a regime of discretionary,
individualized exemptions under which
Blackhawk might qualify if his conduct
were not religiously motivated. The
italicized phrases show that the Game
C o m m i s s i o n ’ s p o l i c y d o e s n o t
categorically disfavor the keeping of wild
animals in captivity. Although the
declaration suggests that the keeping of
wild animals is inconsistent with state
wildlife policy unless doing so provides a
“tangible benefit” for the state’s wild
animals, this is hardly a self-defining
concept, and the Commonwealth has not
explained what the concept means.

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Moreover, under 34 Pa. Cons. Stat. Ann. §
2901(d), a person seeking a waiver need
not show that the waiver would be
“consistent with sound game or wildlife
management activities.” Instead, a person
seeking a waiver may show that it would
be “consistent with . . . the intent of [the
Game and Wildlife Code],” id., and the
Code clearly does not embody a firm or
uniform policy against keeping wild
animals in captivity. For one thing, it
allows anyone to keep wild animals if they
pay a $50 or $100 fee. See 34 Pa. Cons.
Stat. Ann. § 2904. These modest fees,
which are comparable to many municipal
dog license fees, can hardly be viewed as
expressing a hard policy against the
keeping of wild animals. Furthermore, the
Code provides categorical exemptions
from the fee requirement for entities such
as zoos and “nationally recognized
circuses.” See 34 Pa. Cons. Stat. Ann. §
2965(a)(1)-(3). These exemptions serve
the Commonw ealth’s interests in
promoting commerce, recreation, and
education, and consequently, a waiver that
furthered these or analogous interests
might be viewed as consistent with the
Code’s intent. In sum, then, the waiver
mechanism set out in 34 Pa. Cons. Stat.
Ann. § 2901(d) creates a regime of
individualized, discretionary exemptions
that triggers strict scrutiny.
The categorical exemptions in 34
Pa. Cons. Stat. Ann. § 2965(a) for zoos
and “nationally recognized circuses”
likewise trigger strict scrutiny because at
least some of the exemptions available
under this provision undermine the
interests served by the fee provision to at
least the same degree as would an
exemption for a person like Blackhawk.
The Commonwealth suggests that
the fee requirement serves two main
interests: it brings in money and it tends to
discourage the keeping of wild animals in
captivity, wh ich, as n oted, the
Commonw ealth generally views as
undesirable. As the Commonwealth’s
brief puts it, “‘in general keeping animals
in captivity does not provide any positive
benefit to the welfare of populations of
wildlife which live in their natural state
within Pennsylvania.” Appellants’ Br. at
12.
The exemptions for “nationally
recognized circuses” and zoos work
against these interests to at least the same
degree as the type of exemption that
Blackhawk seeks. The state’s interest in
raising money is undermined by any
exemption, and the Commonwealth has
not argued, much less shown, that
religiously based exemptions, if granted,
would exceed the exemptions for
qualifying zoos and circuses and
individual waivers under 34 Pa. Cons. Stat.
Ann. § 2901(d) for persons with secular
motivations.
The exemptions for nationally
recognized circuses and zoos also work
against the Commonwealth’s asserted goal
of discouraging the keeping of wild
animals in captivity except where doing so
provides a “tangible” benefit for
P e n n s y lv a n i a ’ s w i l d l if e . T h e
Commonwealth has not explained how

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circuses, whether nationally recognized or
not, provide tangible benefits for animals
living in the wild in Pennsylvania.
Similarly, except in special circumstances
(for example, if a zoo is conducting
research on animals that are indigenous to
Pennsylvania or is raising animals to be
released into the wild in Pennsylvania), it
is difficult to see how the activities of a
zoo provide a tangible benefit for
Pennsylvania’s wild animals. Yet under
the statute noted above, all zoos are
exempted. Accordingly, the challenged
f e e p r o v i s io n s a r e s u bs tantiall y
“underinclusive” with respect to its
asserted goals, and they thus fail the
requirement of general applicability.
The Commonwealth contends that
the exemptions for circuses and zoos are
“analogous to the prescription exception in
Smith and the undercover uniform
exception” in Fraternal Order of Police,
but this argument is flawed. Appellants’
Br. at 24 (footnote omitted). In Smith, the
state law prohibited the knowing or
intentional possession of a controlled
substance unless the substance was
prescribed by a doctor. See 494 U.S. at
874. The purpose of drug laws is to
protect public health and welfare. See id.
at 904 (O’Connor, J., concurring in the
judgment). However, when a doctor
prescribes a drug, the doctor presumably
does so to serve the patient’s health and in
the belief that the overall public welfare
will be served. Therefore, the prescription
exception in Smith did not undermine the
purpose of the state’s drug laws. The same
is true of the undercover exception in
Fraternal Order of Police. There, police
officers were prohibited from wearing
beards so that they would all present the
same general image to the public. Since
officers working undercover are not
perceived by the public as police officers,
allowing undercover officers to wear
beards did not undermine the purpose of
the no-beard policy. See Fraternal Order,
170 F.3d at 366. As explained above,
however, the exemptions for circuses and
zoos work against both of the interests that
the permit fee is said to serve.
C.
In arguing that the fee provision
should not be subjected to strict scrutiny,
the Commonwealth takes the position that
the fee does not violate Blackhawk’s free
exercise rights because it does not prohibit
him from engaging in religiously
motivated conduct but merely obligates
him to pay a modest annual fee. The
Commonwealth suggests that many laws
imposing user fees and other similar fees
would be thrown into disarray if every
person claiming a religious objection to a
fee could obtain a waiver. The
Commonwealth further argues that, if it
granted waivers for persons who keep wild
animals for religious reasons, it would be
required under the Establishment Clause to
grant comparable waivers for persons who
wish to keep such animals for secular
reasons.
These arguments ignore the content
of the statutes that are before us. We are
not presented here with a neutral and
generally applicable user fee that is

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uniformly imposed without allowing
individualized exemptions. Under Smith,
such a scheme (barring the applicability of
one of the exceptions noted above) would
not trigger strict scrutiny, and a person
seeking to be excused from paying the fee
on religious grounds would be unlikely to
prevail. Here, by contrast, we are
confronted with a scheme that features
both individualized and categorical secular
exemptions, and it is these that trigger
strict scrutiny. Moreover, because the
state statute permits individualized
exemptions for entirely secular reasons, we
see no plausible ground on which it could
be argued that the Establishment Clause
precludes equal treatment for persons who
wish to keep animals for religious reasons.
T h e C o m m o n w e a l t h a l s o
misapprehends the nature of Blackhawk’s
claim. Blackhawk did not ask for a waiver
simply because he possessed the bears for
religious reasons. Rather, he asked for a
waiver “because of his Native American
beliefs and because the fee would cause
[him] hardship.” 225 F. Supp. 2d at 470
(emphasis added). In addition, the
Commission did not deny the waiver on
the ground that Blackhawk did not
establish financial hardship. Instead, the
Commission concluded that “Blackhawk
would not be entitled to an exemption
regardless of his financial circumstances.”
Id. (emphasis added). Thus, although the
Commonwealth argues at some length that
Blackhawk could scrape together the
money to pay the fee, that question is not
before us. Finally, the Commonwealth
argues that the fee provisions at issue here
are similar to provisions of the Internal
Revenue Clause involved in Adams v.
C.I.R., 170 F.3d 173 (3d Cir. 1999). In
Adams, a taxpayer did not pay taxes
because she had a religious objection to
the use of tax revenue for miliary
purposes, and the IRS assessed
deficiencies and penalties against her. Id.
at 174-75. The taxpayer argued that
requiring her to pay taxes substantially
burdened her free exercise of religion and
violated a provision of the Religious
Freedom Restoration Act (“RFRA”), 42
U.S.C. § 2000bb-1, which remained
applicable to the federal government
despite City of Boerne v. Flores, 521 U.S.
507 (1997). See 170 F.3d at 175. Under
RFRA, a law that substantially burdens the
exercise of religion must represent the
least restrictive means of furthering a
compelling government interest. 42
U.S.C. § 2000bb-1. Looking to pre-Smith
cases involving free exercise challenges to
the collection of taxes, Adams held that
the RFRA standard was met. 175 F.3d at
175-80. The Adams panel then rejected
the taxpayer’s argument that she had met
the statutory requirements needed to avoid
penalties and additions to tax. See id. at
180-81. Under the Internal Revenue Code,
these penalties and additions could be
avoided if the taxpaye r s ho w ed
“reaso nable c a u s e ” o r “ u n u s u a l
circumstances and unfairness.” See 26
U.S.C. § 6651(a) (no penalty for failure to
file if taxpayer demonstrates “reasonable
cause”); 26 U.S.C. § 6654(e)(3) (no
addition for underpayment of estimated tax
where failure is due to “unusual
circumstances” and addition would be

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“against equity and good conscience”).
Invoking a “well established line of cases
involving challenges to the collection of
taxes on religious grounds,” 170 F.3d at
181, the panel held in the body of its
opinion that the taxpayer was ineligible for
relief under the provisions on which she
relied. Id. Then, in a footnote, Adams
quickly rejected the taxpayer’s contention
that these provisions created a mechanism
for individual exemptions similar to that in
the unemployment compensation cases and
that “the failure to extend those
exemptions to a case of religious hardship
constitute[d] discrimination on the basis of
religious belief.” Id. at 181 n.10. Adams
held that the provisions of the Internal
Revenue Code on which the taxpayer
relied did not create a scheme of individual
exemptions under which she might have
qualified if she had refused to file for
secular, as opposed to religious, reasons.
Id. On the contrary, as previously noted,
Adams held that these provisions are
categorically inapplicable to the taxpayer
for facially neutral reasons. Id.
The Adams footnote stands for the
proposition that the free exercise rule
regarding individual exemptions does not
apply if the class of persons who may seek
such an exemption is defined in facially
neutral terms and the person challenging
the scheme does not fall within that class.
In that situation, the person challenging the
scheme must argue instead that the scheme
fails the requiremen t of gen eral
applicability because exempting the class
of persons who fall within the statutory
exemption undermines the statute’s goals
to at least the same degree as would an
exemption for those in the class of the
person mounting the challenge. The
Adams footnote did not go on to address
this latter argument, but in any event the
argument was doomed by the panel’s
discussion of the RFRA issue. The panel’s
discussion of that issue made it clear that
the relevant Code provisions met strict
scrutiny because they served a compelling
interest (“the ‘uniform, mandatory
participation in the Federal income tax
system,’” 170 F.3d at 178 (citation
omitted), and were narrowly tailored to
serve that interest in the sense relevant in
this context. See id. at 179-80.
Properly understood, therefore, the
Adams footnote does not support the
Commonwealth’s position here. In this
case, as previously explained, 34 Pa. Cons.
Sat. Ann. § 2901(d) does not categorically
exclude persons wishing to keep animals
for religious reasons. In addition, 34 Pa.
Cons. Stat. Ann. § 2965(a)(1)-(3) contains
secular exemptions that preclude the fee
scheme from satisfying the requirement of
general applicability. As a result, the fee
provisions must satisfy strict scrutiny.
III.
In order to survive strict scrutiny,
the fee scheme “must advance interests of
the highest order and must be narrowly
tailored in pursuit of those interests.”
Lukumi, 508 U.S. at 546 (internal
quotation marks omitted). In this case, the
Game Commission asserts that the fee
scheme serves two compelling interests:
(1) “promot[ing] the welfare and

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prosperity of wildlife populations” and (2)
“maintaining the fiscal integrity of its
permit fee system.” Appellants’ Br. at 28.
It is doubtful that these interests
qualify as compelling. In Lukumi, 508
U.S. at 546-47, the Court held that
“[w]here government restricts only
conduct protected by the First Amendment
and fails to enact feasible measures to
restrict other conduct prod ucin g
substantial harm or alleged harm of the
same sort, the interest given in justification
of the restriction is not compelling.” Here,
the fee scheme has precisely this flaw.
Denying fee exemptions to otherwise
qualified persons who wish to keep
animals for religious reasons may produce
a small decrease in the total number of
wild animals held in captivity, but if the
Commonwealth regarded it as a matter “of
the highest order” to reduce the number of
wild animals in captivity, it could do much
more. For one thing, it could increase the
fees for menagerie and exotic wildlife
possession permits, now set at $100 and
$50 per year respectively, to levels that
would provide a substantial disincentive
for those who are not poor. Similarly, if
the Commonwealth believes that persons
who cannot afford a $100 or $50 annual
permit fee should not keep wild animals
because such persons are likely to find it
difficult to provide adequate care for the
animals, the Commonwealth could do
away with all “hardship” waivers.
Because the Commonwealth sets its fees at
modest levels and provides for “hardship”
waivers, the Commonwealth clearly does
not regard the objective of discouraging
the possession of wild animals as a matter
“of the highest order.”
Much the same is true with respect
to the Commonwealth’s asserted interest in
the financial integrity of the fee system.
Because the Commonwealth makes
waivers available for persons seeking to
keep animals for secular reasons, the
Commonwealth plainly does not regard
waivers as a great threat.
Furthermore, even if the
Commonwealth’s asserted interests are
compelling, the fee scheme is not narrowly
tailored to further them. If the
Commonwealth wishes to reduce the
number of wild animals held in captivity
or to reduce the number held by persons
who cannot afford a $100 or $50 annual
fee (and these are the only effects that
denying the exemptions at issue can have),
the scheme is substantially underinclusive
for the reasons already set out. As a result,
the scheme cannot satisfy strict scrutiny.
We therefore affirm the injunction issued
by the District Court.
IV.
We proceed to address the question
of the individual defendants’ liability for
money damages. The District Court
granted summary judgment to Merluzzi
and Hambley on the ground that they “did
not participate in the decision to deny
Black Hawk an exemption” and did not
“‘direct[] others to violate’” his rights.
Black Hawk, 225 F. Supp. 2d at 479
(brackets in original). The Court excluded
Ross, Littwin, and Overcash from this

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analysis, because Ross “had ‘actual
knowledge’ and acquiesced in the decision
to deny Black Hawk an exemption,” and
because Littwin and Overcash conceded
that they “were personally involved in the
decision to deny Black Hawk an
exemption.” Id. (citing Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir.
1990) (holding that supervisor liability can
be established “‘through allegations of
personal direction or of actual knowledge
and acquiescence’”) (quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988))). Nevertheless, the Court
determined that all three remaining
individual defendants were entitled to
qualified immunity.
We hold that all of the defendants
were entitled to qualified immunity, and
we therefore affirm the order of the
District Court on this basis. A government
officer defendant sued for a constitutional
violation is entitled to qualified immunity
if a reasonable officer could have believed
that the challenged conduct was lawful
under the circumstances. Anderson v.
Creighton, 483 U.S. 635, 641 (1987).
Qualified immunity “provides ample
protection to all but the plainly
incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986). See also Saucier v.
Katz, 533 U.S. 194, 202 (2001).
In this case, the governing
precedents were complex and developing.
Although we now hold that the waiver
procedure in 34 Pa. Cons. Stat. Ann. §
2901(d) is sufficiently open-ended to
constitute a system of individual
exemptions, a reasonable officer in the
position of the defendants could have
concluded otherwise. Section 2901(d) is
more structured than the unemployment
compensation statutes, which permitted
exemptions for “good cause,” see Smith,
494 U.S. at 884, and a reasonable officer
could have viewed § 2901(d) as analogous
for present purposes to the Internal
Revenue Code provisions that Adams held
did not provide for individual exemptions.
See 170 F.3d at 181 n.10.
The meaning of the general
applicability principle was also not clearly
developed in the governing cases at the
time in question. Smith did not explain
how to identify laws that fail the test, and
Lukumi, while providing useful guidance,
explicitly disclaimed any intention of
“defin[ing] with precision . . . whether a
prohibition is of general application.” 508
U.S. at 543. Moreover, our decisions on
March 3 and 4, 1999, in Fraternal Order of
Police and Adams could have reasonably
been interpreted as sending conflicting
signals. As just discussed, the provisions
of the Internal Revenue Code at issue in
Adams could have been reasonably
regarded as similar to the provisions of the
Pennsylvania Game and Wildlife Code
involved here, but we held that the Internal
Revenue Code provisions did not create a
regime of individual exemptions. The
previous day, in Fraternal Order of Police,
we had explained that the individual
exemption rule is simply one application
of the broader general-applicability
requirement. See 170 F.3d at 365-66.
Thus, reading Adams in light of Fraternal

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Order of Police, a reasonable officer could
have been led to read Adams as holding
that the Internal Revenue Code provision
also satisfied the general applicability
requirement. Not surprisingly, Adams is a
centerpiece of the Commonwealth’s
argument in this appeal in support of the
constitutionality of the de nial of
Blackhawk’s waiver request. Although we
find Adams to be distinguishable for the
reasons explained above, a reasonable
officer in the position of the defendants,
after reviewing Adams and the other
leading cases that had been decided at the
time, could have concluded that the denial
was constitutional.
IV.
After considering all of the
arguments raised in the appeal and cross-
appeal, we affirm the judgment of the
District Court in all respects.

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