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Thong-Clad Protesters Stripped of Civil Rights Suit
The Legal Intelligencer
May 23, 2008
A group of young men who stripped down to thong underwear and formed a roadside pyramid to stage a protest when President George W. Bush was visiting Lancaster County in July 2004 have lost their bid to revive a civil rights suit against the Pennsylvania state troopers who arrested them.
The protesters claimed in the suit that they were attempting to recreate one of the infamous photographs of abuse in the Abu Ghraib prison in Iraq, and that their simulation of nudity was therefore essential to their message.
But U.S. District Judge Paul S. Diamond dismissed the suit in March 2006, finding that the troopers had probable cause to arrest the protesters for "open lewdness" because they "appeared to be entirely naked" and there were young children in the vicinity.
As a result, Diamond concluded in his opinion in Egolf v. Witmer that the troopers had not violated the protesters' First Amendment rights. But even if they had, Diamond said, the four troopers named in the suit would nonetheless be entitled to "qualified immunity" because there is no "clearly established" right to employ simulated nudity in a political protest.
Now, the 3rd U.S. Circuit Court of Appeals has upheld Diamond's decision, but the three-judge panel was divided in its legal analysis. Two of the judges said Diamond's dismissal of the suit should be affirmed purely on qualified immunity grounds because the protesters could not show that the arresting officers violated any clearly established right.
But the third judge said he wouldn't even reach the qualified immunity issue because he believed Diamond was correct in holding that the protesters' constitutional rights were never violated. The protesters' lawyer, J. Dwight Yoder of Gibbel Kraybill & Hess in Lancaster, Pa., said he was disappointed by the ruling because he believes his clients were engaged in "core political speech" that "cannot be suppressed merely because it is offensive."
Yoder said none of the protesters violated public indecency laws because their genitals were never exposed, and that their decision to pose in a "nearly naked" state was "the only way to convey how horrible" the abuses at Abu Ghraib were.
According to court papers, Bush was scheduled to make a campaign visit to East Lampeter Township on July 9, 2004, for an invitation-only event. In the hours before the president's arrival, crowds gathered along Route 340, including protesters and Bush supporters.
At one point, a group of seven young men selected a spot along the motorcade's route and stripped down to thong underwear. Five got on their hands and knees on the ground; two others then climbed onto the backs of the five and also got on their hands and knees, baring their buttocks toward the road.
The group later said they had intended to form a structure that resembled a photograph taken at the Abu Ghraib prison in Iraq that showed three naked Iraqi inmates perched on the backs of four others. The group also included a woman, who was to stand behind the pyramid with a sign reading "Great War, George," and an eighth man who planned to videotape the protest and explain it to bystanders.
But the president never saw the protest because state troopers began to arrest the men about a minute after the pyramid was formed. One protester who "quickly dressed" was not arrested, but the other six were handcuffed and taken into custody for about two hours.
Lancaster County's district attorney later declined to press any charges.
The lawsuit was filed by Yoder and attorney Paula Kay Knudsen of the American Civil Liberties Union on behalf of five of the arrested protesters -- Tristan P. Egolf, Adam Clayton Willard, Jonathan A. Kohler, David J.C. O'Bryant and Benjamin D. Keely.
(Egolf, the lead plaintiff, a writer whose first novel at age 27 had won him comparisons to William Faulkner and John Steinbeck, committed suicide in May 2005, and his parents took his place in pursuing the lawsuit.)
In dismissing the suit, Diamond said he agreed that the protesters were engaged in "political" speech, but that he also found that Pennsylvania's open lewdness statute is "content-neutral," and that the protesters had violated it.
"I believe that any reasonable person -- seeing plaintiffs' near-nude display in the presence of children and adults awaiting the president's visit -- would have concluded that the First Amendment did not protect plaintiffs' conduct," Diamond wrote.
On appeal, the case sparked a disagreement among the three judges about how to approach such First Amendment cases.
The majority focused on whether the arresting officers were entitled to qualified immunity and concluded that they were because the situation forced them to make a "split-second" decision about whether such sexually explicit protests qualify as protected speech.
"The choice that the protesters made to portray this particular image generates a question that would have been difficult to assess on the scene: whether the depiction of an inherently sexually offensive image is any less shocking simply because people recreate it as a protest," U.S. Circuit Judge Richard L. Nygaard wrote.
But in a lengthy concurring opinion, U.S. Circuit Judge D. Brooks Smith said he would also uphold Diamond's dismissal of the suit, but that he would take a different path.
Smith said he believes the U.S. Supreme Court has instructed lower courts to take a two-step approach to such cases, focusing first on whether any constitutional violation occurred and turning to the qualified immunity question only if the plaintiff can establish a constitutional violation.
Under that analysis, Smith said, the protesters suit would fail at the first step because they cannot show that their arrests violated either their First or Fourth amendment rights. Smith said he agreed with Diamond that the officers had probable cause to arrest the protesters for open lewdness, and that the protesters cannot show that there was any less restrictive means of preventing violations of the lewdness law. As a result, Smith said, it was unnecessary for the court to reach the issue of qualified immunity because no constitutional violation occurred.
The disagreement among the judges stemmed from their differing views on how to read the U.S. Supreme Court's 2001 decision in Saucier v. Katz, which outlined a two-step process for deciding questions of qualified immunity. Under Saucier, courts first decide whether the facts alleged by the plaintiffs amount to a constitutional violation, and, if so, decide in the second step whether the violated right was a "clearly established" one.
Nygaard, in an opinion joined by visiting 8th Circuit Judge David R. Hansen, found that since the analysis of the existence of the right hinged on predictions of state law, the case was an exception to Saucier's "generally mandated analytic framework." The purpose of the two-step process outlined in Saucier, Nygaard said, was to mandate that courts address the constitutional questions in order to "advance the elaboration of the law" so that police would receive "better guidance on the parameters of constitutional violations."
But Nygaard found that when the constitutional question hinges on predictions of state law, such as the parameters of Pennsylvania's lewdness statute, the purpose of Saucier was no longer being served. "In cases such as this, federal courts do a disservice to state actors who would be induced to rely on a ruling that might change altogether upon subsequent review by the state court," Nygaard wrote.
Smith disagreed, saying, "I regard the Saucier rule as mandatory and do not believe that inferior courts are free to depart from it."
Deputy Attorney General John G. Knorr III, who argued the appeal for the state troopers, could not be reached for comment.
Yoder said he has not yet discussed the decision with his clients and that no decision has yet been made about whether to seek reargument in the 3rd Circuit or pursue an appeal to the U.S. Supreme Court.
