Raymond Frantz v. William J. Gress

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4385
RAYMOND FRANTZ,
Appellant
v.
WILLIAM J. GRESS; JOHN HANEJKO
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-06-cv-03210)
District Judge: Honorable Petrese B. Tucker
Submitted Under Third Circuit LAR 34.1(a)
October 1, 2009
Before: AMBRO, GARTH and ROTH, Circuit Judges
(Opinion filed : December 30, 2009)
OPINION
AMBRO, Circuit Judge
Raymond Frantz appeals the judgment of the District Court against him and in
favor of the defendants, Philadelphia Police Officers William G. Gress and John

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Frantz’s initial complaint named as a defendant “Officer Anenko,” but the District1
Court granted Frantz’s unopposed motion for leave to file an amended complaint
replacing “Officer Anenko,” who does not exist, with the proper officer, Officer Hanejko.
2
Hanejko. As we discern no error in the findings of fact and conclusions of law entered1
by the District Court, we affirm.
I.
Frantz filed a complaint in July 2006 against Gress and Hanejko, alleging
violations of his First and Fourth Amendment rights, malicious prosecution, and the
unconstitutionality under the Equal Protection Clause of §§ 10-723 and 723.1 of the
Philadelphia Code. Frantz has been distributing religious tracts since 1984 with an
outreach campaign for Jews for Jesus and Jewish Outreach Partnership for the
Philadelphia Area, and he bases his complaint on two specific incidents that occurred
while he was attempting to distribute his leaflets at the corner of Fourth and South Streets
in Philadelphia.
The first incident occurred on April 9, 2005. According to Frantz, he was standing
close to the curb, not blocking pedestrian passage, when Officer Gress told Frantz that he
could not pass out handbills and that he was creating a litter problem. Gress, in contrast,
testified that Frantz was standing in the middle of the sidewalk, causing pedestrians either
to walk into the street or get “shoved up against” the wall. Gress informed Frantz he
could not hand out leaflets. When Gress realized Frantz was distributing religious

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This section concerns distribution of commercial and non-commercial handbills on2
sidewalks, streets, and private property. Section 10-723.1 of the Code states:
Every distributor, distribution business, or person who distributes or causes to
be distributed commercial or non-commercial handbills upon any public place
within the City, shall, at the end of the daily distribution, clear or cause to be
cleared any discarded handbills within a one hundred foot radius of the
location where the handbills were distributed.
The crime of obstructing highways and other public passages in Pennsylvania is3
defined as follows:
A person, who, having no legal privilege to do so, intentionally or recklessly
obstructs any highway, railroad track or public utility right-of-way, sidewalk,
navigable waters, other public passage, whether alone or with others, commits
a summary offense, or, in case he persists after warning by a law officer, a
misdemeanor of the third degree.
18 Pa. Cons. Stat. § 5507(a). The term obstructs “means renders impassable without
unreasonable inconvenience or hazard.” Id. § 5507(c).
3
leaflets, for which a license is not required, Gress instead asked Frantz to move nearer to
the curb to avoid obstructing the pathway. Frantz refused to comply after two orders.
Frantz was arrested and taken to the police station. Gress issued a citation for
improper distribution of handbills, in violation of Philadelphia Code § 10-723. The2
District Attorney later amended the charges to include “Obstructing the Highway” under
18 Pa. Cons. Stat. § 5507. Frantz was found guilty in Municipal Court of violating § 10-3
723, but Frantz testified that the charges against him were dismissed at the Common Pleas
level.
On June 18, 2006, Frantz testified that he was standing near the curb at the same
location when Officer Hanejko told Frantz he could not hand out literature and threatened
to arrest him if he did not leave. Officer Hanejko testified that Frantz was not near the

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Frantz does not appear to challenge the District Court’s finding in favor of the4
defendants on his malicious prosecution claim. In any event, we find no error in the
District Court’s ruling on this claim, as probable cause existed for Frantz’s arrest.
4
curb but was standing in the middle of the sidewalk, causing pedestrians either to veer
into the street or run into the wall to pass him. Hanejko further testified that he did not
tell Frantz he could not hand out literature, but instead informed him that he could be
arrested for obstruction of the highway if he did not move to the side so as not to obstruct
pedestrian traffic. Frantz grew angry and left.
After the District Court denied Frantz’s motion for summary judgment, the case
proceeded to a two-day bench trial. In June 2008, the District Court issued Findings of
Fact and Conclusions of Law and entered judgment on all claims for Officers Gress and
Hanejko. Frantz timely appealed.4
II.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331,
and we have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
This case comes to us after a non-jury trial. We review a District Court’s findings
of fact for clear error and its conclusions of law de novo. Henglein v. Colt Indus.
Operating Corp., 260 F.3d 201, 208 (3d Cir. 2001). “We review credibility
determinations, like other factual findings, under a clearly erroneous standard.” Grider v.
Keystone Health Plan Cent., Inc., 580 F.3d 119, 137 (3d Cir. 2009).

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We accept the District Court’s findings of fact on this issue, as they are not clearly5
erroneous and are supported by the officers’ testimony. Frantz spends much of his brief
arguing that he could not have interrupted pedestrian traffic given the width of the
sidewalk. Whatever the sidewalk’s precise measurements, the District Court credited the
officers’ testimony that pedestrians were forced against the wall or into the road because
of Frantz’s location on the sidewalk, and we will not disturb this determination. See
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”).
While Gress initially issued a citation for a violation of the Philadelphia leafleting6
ordinance, with the obstructing violation added later by the District Attorney, “[p]robable
cause need only exist as to any offense that could be charged under the circumstances.”
Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).
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III.
Frantz challenged his 2005 arrest on Fourth Amendment grounds, contending that
it was not supported by probable cause. However, Gress had probable cause to arrest
Frantz when he refused Gress’s repeated requests to move from the middle of the
sidewalk where he was obstructing the flow of pedestrian traffic. Therefore, the District5
Court properly found that Frantz’s claim fails. Frantz’s Fourth Amendment claim based6
on the 2006 encounter with Hanejko also fails, as we agree with the District Court that
Frantz was not seized and therefore cannot show a violation of the Fourth Amendment.
Frantz also challenged the two incidents on First Amendment grounds. While
“spreading one’s religious beliefs or preaching the Gospel through distribution of
religious literature . . . is an age-old type of evangelism with as high a claim to
constitutional protection as the more orthodox types,” Murdock v. Pennsylvania, 319 U.S.

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105, 110 (1943), the Government may impose reasonable restrictions on the time, place,
and manner of speech. See McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009).
The District Court found that Gress and Hanejko merely ordered Frantz to move from the
middle of the sidewalk, nearer to the curb, so that pedestrians would not be forced to walk
into the street or the wall. They did not order Frantz to leave or stop leafleting.
Where speech in a traditional public forum is limited without reference to the
subject matter or viewpoint of the speech, as in this case, the challenged restriction is
subject to intermediate scrutiny, and must be narrowly tailored to serve a significant
governmental interest and leave open options for communication of information. Id. The
District Court properly concluded this restriction survived intermediate scrutiny. Even
under heightened scrutiny, which imposes a more stringent “narrowing” requirement than
intermediate scrutiny, the officers’ orders that Frantz move closer to the curb burdened
his speech no more than was necessary. See id. at 655 (applying heightened scrutiny to a
police directive issued by officers in the field).
Frantz sought to challenge on equal protection grounds the validity of §§ 10-723
and 723.1(1) of the Philadelphia Code, which require handbillers to clear discarded
handbills at the end of daily distribution, because the statute does not require commercial
vendors to clear litter they generate. However, commercial vendors are not similarly
situated to handbillers (and indeed are covered by different sections of the code). The
sections challenged by Frantz apply to commercial and non-commercial handbillers. See

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Before trial, Frantz moved to compel an additional response to the interrogatory7
requesting details from Hanejko on the 2006 incident. The District Court denied this
request, and Frantz did not seek to revisit this ruling at trial or preclude Hanejko from
testifying.
7
Phila. Code § 10-723.1 (requiring “[e]very distributor, distribution business, or person
who distributes or causes to be distributed commercial or non-commercial handbills upon
any public place within the City” to dispose of them at the end of the day). Accordingly,
Frantz’s equal protection claim fails.
Frantz also claims that Hanejko “admitted” Frantz’s version of critical events in
his answer to the Amended Complaint and his interrogatory responses. Specifically,
Frantz asserts that Hanejko improperly failed to deny certain facts in the complaint and
should have been barred from testifying to any facts not contained in his interrogatory
responses. Because Frantz did not seek to exclude Hanejko’s testimony at trial, we do not
consider this belated argument. In any event, such a sanction likely would not have been7
appropriate. See Quinn v. Consol. Freightways Corp. of Delaware, 283 F.3d 572, 576
(3d Cir. 2002) (“The exclusion of critical evidence is an extreme sanction, not normally to
be imposed absent a showing of willful deception or flagrant disregard of a court order by
the proponent of the evidence.”) (quotation marks, citation, and alteration omitted).
Frantz also claims that the allegations in his Second Amended Complaint should
be deemed “admitted” due to the officers’ “failure” to file an Answer to that pleading.
This argument is frivolous. Frantz filed his Second Amended Complaint after the bench

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8
trial to add the first name of Officer Hanejko and clarify that each defendant was sued in
his individual capacity.
* * * * *
We thus affirm the judgment of the District Court.

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