Davis et al v. Pennsylvania Game Commission

Filing 1

COMPLAINT against Pennsylvania Game Commission ( Filing fee $400, Receipt Number 0314-2865560), filed by Kathy Davis, Hunters United for Sunday Hunting. (Attachments: # 1 Civil Cover Sheet)(pjr)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

KATHY DAVIS and HUNTERS
UNITED FOR SUNDAY HUNTING

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Plaintiffs,
vs.
PENNSYLVANIA GAME
COMMISSION,

Defendant,

TYPE OF PLEADING:
COMPLAINT FOR
DECLARATORY
JUDGMENT and
INJUNCTIVE RELIEF

COMPLAINT FOR DECLARATORY JUDGMENT
AND INJUNCTIVE RELIEF

AND NOW, COMES, the Plaintiffs, Kathy Davis and Hunters United for
Sunday Hunting, by and through its undersigned attorney, and files this Petition for
Review in the Nature of a Complaint for Declaratory Judgment and Injunctive
Relief pursuant to 42 U.S.C. Section 1923 seeking a judgment declaring certain
sections of the game and wildlife code to be unconstitutional under the First,
Second and Fourteenth Amendments to the United States Constitution; to issue a
declaratory ruling that certain sections of the game and wildlife code do not apply
to Petitioner; to declare the prohibition on hunting certain species on Sunday

1

pursuant to the Pennsylvania Game Commission unconstitutional under the First,
Second and Fourteenth Amendments to the United States Constitution. Petitioner
further asks the Court to permanently enjoin the enforcement of the subject statutes
and to grant supplemental relief as permitted by law.

JURISDICTION

1.

This suit is brought pursuant to 42 U.S.C. Section 1983:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any state
or territory or the District of Columbia, subject, or
causes to be subject, any citizen of the United States
or other person in the jurisdiction therefore to the
deprivation of any rights, privileges or immunities
secured by the Constitution and laws shall be liable
to the party injured in the action at law, suit and
equity, or other proceedings for redress.

2.

This Court has “Federal Question” jurisdiction pursuant to 28 U.S .C. §
1331 to hear cases arising under the Constitution of the United States,
under 28 U.S.C. §1343(3) to redress the deprivation under color of state
law of any right, privilege or immunity secured by the Constitution, and

2

under 28 U.S.C. § 1343(4) to secure equitable or other relief for the
protection of civil rights.
3.

The Court has the authority to issue declaratory judgments and
permanent injunctions pursuant to 28 U.S.C. §2201 and 2202, and
Fed.R.Civ.P 65.

4.

This Court may enter an award of attorney’s fees pursuant to 42 U.S.C.
§1988.

5.

This Complaint seeks declaratory and injunctive relief to prevent
violations of the Plaintiffs rights, privileges and immunities under the
Constitution of the United States and 42 U.S.C. §1983 and 1988,
specifically seeking redress for the deprivation under color of state
statute, ordinance, regulation, custom or usage of rights, privileges, and
immunities secured by the Constitution and laws of the United States.
The rights sought to be protected in this cause of action arise and are
secured under the First and Fourteenth Amendments to the Constitution.

6.

This Court has supplemental jurisdiction over Plaintiffs state law claims
pursuant to 28 U.S.C. § 1366.

7.

This Petition seeks declaratory and injunctive relief to prevent violations
of the Plaintiffs rights, privileges and immunities under the Constitution
of the United States and redress for the deprivation under color of state
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statute, ordinance, regulation, custom or usage of rights, privileges, and
immunities secured by the United States Constitution and laws of the
United States. The rights sought to be protected in this cause of action
arise and are secured under the First and Fourteenth Amendments to the
United States Constitution.
8.

As a commission of the State of Pennsylvania, organized and operating
under the laws of the State of Pennsylvania, Pennsylvania Game
Commission and their governing officials were, and are, acting under
color of state law and authority in interpreting and enforcing the subject
sections of the game and wildlife code.

9.

The enforcement and threatened enforcement of the subject Ordinances
against Plaintiffs is an action taken under color of state law and
constitutes state action.

VENUE
10.

Pennsylvania Game Commission is located in the Harrisburg Division of
the Middle District of Pennsylvania and all acts complained of herein
have occurred in that District and Division. Venue is proper in this Court
under 28 U.S.C. §1391(b).

4

COLOR OF STATE LAW
11.

As a commission of the State of Pennsylvania, organized and operating
under the laws of the State of Pennsylvania, Pennsylvania Game
Commission and their governing officials were, and are, acting under
color of state law and authority in adopting and enforcing the subject
statutes.

12.

The enforcement and threatened enforcement of the subject Ordinances
against Plaintiffs is an action taken under color of state law and
constitutes state action within the meaning of 42 U.S.C. §1983.

PARTIES
13.

Petitioner, Kathy Davis (“Davis”) is an adult individual citizen of the
Commonwealth of Pennsylvania.

14.

Petitioner, Hunters United for Sunday Hunting (“HUSH”) is a
Pennsylvania

non-profit

company

in

good

standing

in

the

Commonwealth of Pennsylvania having a principal office located at P.O.
Box 255, Lititz, Pennsylvania 17543.
15.

Defendant Pennsylvania Game Commission, (hereinafter “Commission”)
is

a

statutorily

created

state

agency

responsible

for wildlife conservation and management in Pennsylvania having its
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offices located at 2001 Elmerton Avenue, Harrisburg, Pennsylvania
17110.

BACKGROUND FACTS
16.

Section 2303 (a) of Title 34 of the Pennsylvania Consolidated Statutes
provides, “Except as otherwise provided in this title, it is unlawful for
any person to hunt for any furbearer or game on Sunday.”

17.

Davis and the members of HUSH wish to hunt furbearer, big game1
and/or small game2 on public and/or private lands within the
Commonwealth of Pennsylvania during established seasonal periods as
promulgated by the Pennsylvania Game Commission.

18.

However, Davis and the members of HUSH are permitted to hunt deer,
bear, elk, turkey, and small game on public and/or private lands within
the Commonwealth of Pennsylvania during established seasonal periods
as promulgated by the Pennsylvania Game Commission with the
exception of Sunday.

19.

Section 2303 (b.1) of Title 34 of the Pennsylvania Consolidated Statutes
provides exceptions Section 2303 (a) of Title 34 of the Pennsylvania

1

Big game consists of White-Tailed Deer, Black Bear, Elk and Wild Turkey.
Small game consists of Woodcock, Rabbit, Pheasant, Northern Bobwhite, Quail, Ruffed Grouse, Groundhog, and
Squirrel.
2

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Consolidated Statutes which permits the hunting of crow, foxes, coyotes,
furbearer and feral hog.
20.

Pursuant to Section 2303 (b.1) of Title 34 of the Pennsylvania
Consolidated Statutes, Plaintiffs are permitted to hunt furbearer, big
game and/or small game which occurs on noncommercial regulated
hunting grounds.

21.

Among other requirements, Section 2928 of Title 34 of the Pennsylvania
Consolidated Statutes requires a minimum of 100 acres of land to be
eligible to be licensed as a “regulated hunting grounds.”

22.

The Pennsylvania Game Commission has enacted regulations which
further differentiate the rights of hunters, specifically:
a. Feral swine or wild hogs may be taken on all days including Sunday;
and
b. Deer and elk may be taken by farmers on their private property on all
days including Sunday if the deer create damage in accordance with
58 PA Code.

23.

At any time, the Commission has the right and power to enact its own
regulations.

24.

Should the Plaintiffs disregard Section 2303 (a) of Title 34 of the
Pennsylvania Consolidated Statutes they risk:
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a. prosecution of a summary offense of the fifth degree; and
b. adverse administrative action against their licenses.
25.

For these reasons, the Petitioner is entitled to declaratory and permanent
injunctive relief barring the Pennsylvania Game Commission from
enforcing section 2304 of Title 34.

26.

In light of the above, Petitioner needs temporary, preliminary, and
permanent injunctive relief from Section 2303 of Title 34 of the
Pennsylvania Consolidated Statutes.

27.

Petitioner can establish a likelihood of success on the merits of each of
the counts below, including showing that Section 2303 of Title 34 of the
Pennsylvania Consolidated Statutes violates the U.S. Constitution.

28.

If Plaintiffs are not granted temporary relief from Section 2303 of Title
34 of the Pennsylvania Consolidated Statutes the Ordinance, they will
miss irreplaceable time during each seasonal hunting period.

29.

Given that most people work Monday through Friday and children under
18 years of age are in school Monday through Friday, Sundays comprise
fifty percent (50%) of the available time to hunt in Pennsylvania.

30.

If a temporary injunction is not granted, prohibiting Sunday hunting of
furbearer, big game and/or small game will result in irreparable harm
because 1) a constitutional deprivation will occur; 2) money damages are
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not available against the defendant Commission; and 3) Plaintiffs will
suffer irreparable loss of the opportunity to hunt during the periods set
forth above.
31.

Defendant Commission will not suffer irreparable harm if temporary
relief is granted because enjoining temporary enforcement of the Section
2303 of Title 34 of the Pennsylvania Consolidated Statutes will merely
restore the parties to the prior status quo, under which both parties
operated without irreparable harm for many years.

32.

The public interest is served by enjoining temporary enforcement of a
Constitutionally suspect ordinance and by permitting the lawful act of
hunting.

COUNT I
RIGHT TO HUNT
SECOND AMENDMENT
33.

Plaintiffs incorporate the above paragraphs 1 – 32 as if fully set forth
herein.

34.

The Second Amendment to the United States Constitution provides:
A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.
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35.

Section 21 of the Pennsylvania Constitution provides:
The right of the citizens to bear arms in defense of
themselves and the State shall not be questioned.

36.

Supreme Court Justice Stevens in McDonald v. Chicago3 recognized that
part of the rights contemplated by the Second Amendment included
hunting and sport.4

37.

The Supreme Court in District of Columbia v. Heller noted “[t]he
prefatory clause does not suggest that preserving the militia was the only
reason Americans valued the ancient right; most undoubtedly thought it
even more important for self-defense and hunting.”5

38.

Pursuant to the United States Constitution and the Pennsylvania
Constitution, Pennsylvanians are permitted to bear arms, which right
include, but are not limited to, hunting.

39.

To limit selected Pennsylvanian’s right to hunt and bear arms on Sunday
is arbitrary and without a secular purpose.

40.

There is no substantial governmental interest advanced by the prohibition
on hunting furbearer, big game and/or small game.

3

McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
“Guns may be useful for self-defense, as well as for hunting and sport…” McDonald at 3108.
5
District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2007).
4

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41.

Therefore, Section 2303 of Title 34 of the Pennsylvania Consolidated
Statutes violates the Second Amendment to the United States
Constitution and plaintiffs are entitled to relief.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for relief as follows:
a) For the entry of injunctive relief pursuant to Fed. R. Civ. P. 65 to
temporarily,

preliminarily,

and

permanently

prohibit

further

enforcement of Section 2303 of Title 34 of the Pennsylvania
Consolidated Statutes; and
b) That the Court awards such other relief as it deems just and proper.

COUNT II
RIGHT TO HUNT
PENNSYLVANIA CONSTITUTION - ARTICLE I – SECTION 1
42.

Plaintiffs incorporate the above paragraphs 1 – 41 as if fully set forth
herein.

43.

Article I, Section 1 of the Pennsylvania Constitution provides:
All men are born equally free and independent, and
have certain inherent and indefeasible rights, among
which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting

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property and reputation, and of pursuing their own
happiness.
44.

Article I, Section 21 of the Pennsylvania Constitution provides:
The right of the citizens to bear arms in defense of
themselves and the State shall not be questioned.

45.

Supreme Court Justice Stevens in McDonald v. Chicago6 recognized that
part of the rights contemplated by right to bear arms under the Second
Amendment included hunting and sport.7

46.

The Supreme Court in District of Columbia v. Heller noted “[t]he
prefatory clause does not suggest that preserving the militia was the only
reason Americans valued the ancient right; most undoubtedly thought it
even more important for self-defense and hunting.”8

47.

Pursuant to the United States Constitution and the Pennsylvania
Constitution, Pennsylvanians are permitted to bear arms, which right
include, but are not limited to, hunting.

48.

To limit selected Pennsylvanian’s right to hunt and bear arms on Sunday
is arbitrary and without a secular purpose.

49.

There is no substantial governmental interest advanced by the prohibition
on hunting furbearer, big game and/or small game.

6
7
8

McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010).
“Guns may be useful for self-defense, as well as for hunting and sport…” McDonald at 3108.
District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2007).

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50.

Therefore, Title 34 of the Pennsylvania Consolidated Statutes violates
Article One, Section 1 and Article One, Section 21 of the Pennsylvania
Constitution and Plaintiffs are entitled to relief.

PRAYER FOR RELIEF
WHEREFORE, pursuant to Pa. R. Civ. Pro. 1602 and the Declaratory
Judgments Act, 42 Pa.C.S.A. § 7532, et seq., Plaintiffs respectfully demand
judgment in their favor and against the Defendant as follows:
a) For the entry of injunctive relief to temporarily, preliminarily, and
permanently prohibit further enforcement of Section 2303 of Title 34
of the Pennsylvania Consolidated Statutes; and
b) That other relief the Court deems just and proper.

COUNT III
EQUAL PROTECTION
FOURTEENTH AMENDMENT
51.

Plaintiffs incorporate the above paragraphs 1 – 50 as if fully set forth
herein.

52.

The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution provides:

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All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws.
53.

Plaintiffs are treated differently by Title 34 of the Pennsylvania
Consolidated Statutes than other Pennsylvania citizens who are similarly
situated.

54.

Title 34 of the Pennsylvania Consolidated Statutes and the Commission’s
regulations create different classes of hunters; one class who are not
permitted to hunt furbearer, big game and/or small game on Sunday and
other classes that permit furbearer, big game and/or small game to be
taken on Sundays.

55.

Pennsylvania’s Legislature and the Commission have intentionally
passed statutes and regulations, thereby creating the multiple classes of
similarly situated but differently treated hunters.
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56.

There is no longer a rational basis for the difference in treatment between
the various classes.

57.

Therefore, Section 2303 of Title 34 of the Pennsylvania Consolidated
Statutes violates the Fourteenth Amendment to the United States
Constitution and plaintiffs are entitled to relief.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for relief as follows:
c) For the entry of injunctive relief pursuant to Fed. R. Civ. P. 65 to
temporarily,

preliminarily,

and

permanently

prohibit

further

enforcement of Section 2303 of Title 34 of the Pennsylvania
Consolidated Statutes; and
d) That the Court award such other relief as it deems just and proper.

COUNT IV
EQUAL PROTECTION – DISPARATE TREATMENT
PENNSYLVANIA CONSTITUTION - ARTICLE I – SECTION 1

58.

Plaintiffs incorporate the above paragraphs 1 – 57 as if fully set forth
herein.

59.

Article I, Section 1 of the Pennsylvania Constitution has been generally
considered to provide citizens of the Commonwealth equal protection
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under the law. Fischer v. Department of Public Welfare, 509 Pa. 293,
502 A.2d 114 (1985).
60.

Article I, Section 1 of the Pennsylvania Constitution provides:
All men are born equally free and independent, and
have certain inherent and indefeasible rights, among
which are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting
property and reputation, and of pursuing their own
happiness.

61.

Article I, Section 27 of the Pennsylvania Constitution provides:
The people have a right to clean air, pure water, and
to the preservation of the natural, scenic, historic and
esthetic values of the environment. Pennsylvania's
public natural resources are the common property of
all the people, including generations yet to come. As
trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the
people.

62.

Plaintiffs are treated differently by Title 34 of the Pennsylvania than
other Pennsylvania citizens who are similarly situated.

63.

Title 34 of the Pennsylvania Consolidated Statutes and the Commission’s
regulations create different classes of hunters; one class who are not
permitted to hunt furbearer, big game and/or small game on Sunday and
other classes that permit furbearer, big game and/or small game to be
taken on Sundays.

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64.

Pennsylvania’s Legislature and the Commission have intentionally
passed statutes and regulations, thereby creating the multiple classes of
similarly situated but differently treated hunters.

65.

There is no longer a rational basis for the difference in treatment between
the various classes.

66.

As a result of creating the multiple classes of similarly situated but
differently treated hunters, the citizens of the Commonwealth no longer
have equal access to the natural resources of the Commonwealth.

67.

Therefore, Section 2303 of Title 34 of the Pennsylvania Consolidated
Statutes violates the Article I, Section 1 and Article I, Section 27 of the
Pennsylvania Constitution and Plaintiffs are entitled to relief.

PRAYER FOR RELIEF
WHEREFORE, pursuant to Pa. R. Civ. Pro. 1602 and the Declaratory
Judgments Act, 42 Pa.C.S.A. § 7532, et seq., Plaintiffs respectfully demand
judgment in their favor and against the Defendant as follows:
a) For the entry of injunctive relief to temporarily, preliminarily, and
permanently prohibit further enforcement of Section 2303 of Title 34
of the Pennsylvania Consolidated Statutes; and
b) That other relief the Court deems just and proper.
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COUNT V
EQUAL PROTECTION – “BLUE LAWS”
PENNSYLVANIA CONSTITUTION - ARTICLE III – SECTION 32
68.

Plaintiffs incorporate the above paragraphs 1 – 67 as if fully set forth
herein.

69.

Section 2303 of Title 34 of the Pennsylvania Consolidated Statutes
restricts a hunter’s ability to hunt on Sunday.

70.

Section 2303 of Title 34 of the Pennsylvania Consolidated Statutes
restricts what can be hunted on Sunday.

71.

Section 2303 of Title 34 of the Pennsylvania Consolidated Statutes
restricts where a hunter’s may hunt on Sunday.

72.

The Pennsylvania Supreme Court Kroger9 stated “when a law which
prohibits business activity is riddled with exception after exception, a
time comes when the general scheme is so diluted that it violates the
equal protection of the laws.”

73.

The restriction contained in the statute is without rational and substantial
relation to the object of the legislation as it grants certain classes of
hunters the ability to hunt while simultaneously denying another class of
hunters.

9

Kroger v. O'Hara Township, 392 A.2d 266, 273 (Pa. 1978)

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74.

Any rational and substantial relation to the object of the legislation the
statute had when created is no longer applicable.

75.

House Resolution 535 was introduced to the Pennsylvania General
Assembly on January 23, 2012 as a Noncontroversial Resolution under
Rule 35.

76.

House Resolution 535 declared 2012 as the “Year of the Bible” in
Pennsylvania.

77.

While the Court in McGowan10 found that Sunday closure laws were
permissible when they were enacted for secular reasons, the Plaintiffs
contend that the secular reasons for Title 34 of the Pennsylvania
Consolidated Statutes and the Commission are no longer applicable.

78.

It is Petitioner’s assertion that the Defendant prohibition on Sunday
hunting no longer has a secular basis but instead a religious basis.

79.

Therefore, Section 2303 of Title 34 of the Pennsylvania Consolidated
Statutes violates the Article III, Section 32 of the Pennsylvania
Constitution and the First Amendment to the United States Constitution
and therefore Plaintiffs are entitled to relief.

10

McGowan v. Maryland, 366 U.S. 420 (1961)

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PRAYER FOR RELIEF
WHEREFORE, pursuant to Pa. R. Civ. Pro. 1602 and the Declaratory
Judgments Act, 42 Pa.C.S.A. § 7532, et seq., Plaintiffs respectfully demand
judgment in their favor and against the Defendant as follows:
a) For the entry of injunctive relief to temporarily, preliminarily, and
permanently prohibit further enforcement of Section 2303 of Title 34
of the Pennsylvania Consolidated Statutes; and
b) That other relief the Court deems just and proper.

COUNT VI
RELIGIOUS FREEDOM PROTECTION ACT
80.

Plaintiffs incorporate the above paragraphs 1 – 79 as if fully set forth
herein.

81.

The Religious Freedom Protection Act (“RFPA’) forbids state and local
government agencies from substantially burdening a person’s free
exercise of religion, including a burden which results from a statute of
general applicability, unless the burden is justified by a compelling
interest and is the least restrictive means of furthering the compelling
interest. 71 P.S. § 2404.

20

82.

The General Assembly specifically intended that the protections afforded
by the RFPA extend to state statutes enacted before the enactment of the
RFPA. 71 P.S. § 2402(2).

83.

The RFPA defines “substantially burden” in part as “conduct or
expression which violates a specific tenet of a person's religious faith.”
71 P.S. § 2403(4).

84.

Section 2303 of Title 34 of the Pennsylvania Consolidated Statutes
compels conduct that violates specific tenets of the religious beliefs of
some H.U.S.H members.

85.

Section 2303 of Title 34 of the Pennsylvania Consolidated Statutes,
affected H.U.S.H members’ religious freedoms are burdened by the
imposition of an arbitrary prohibition on Sunday hunting.

86.

Therefore, by definition, Section 2303 of Title 34 of the Pennsylvania
Consolidated Statutes imposes a substantial burden on the exercise of the
religious freedoms of H.U.S.H. members.

87.

The RFPA specifically authorizes Pennsylvania Game Commission to
remedy the substantial burden on H.U.S.H. members’ free exercise of
religion. 71 P.S. 2405(d).

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88.

Pennsylvania Game Commission has been provided the opportunity to
remedy the substantial burden on H.U.S.H. members’ free exercise of
religion but have refused to remedy the substantial burden.

89.

The RFPA provides that a person whose free exercise of religion has
been substantially burdened or likely will be burdened in violation of
section 2404 may assert that violation against an agency as a claim or
defense in any judicial or administrative proceeding. 71 P.S. § 2405(a).

90.

This Court has the jurisdiction to award declaratory and injunctive relief
pursuant to 71 P.S. § 2405(f).

PRAYER FOR RELIEF
WHEREFORE, pursuant to Pa. R. Civ. Pro. 1602, the Declaratory
Judgments Act, 42 Pa.C.S.A. § 7532, et seq., and 71 P.S. § 2405(f) Plaintiffs
respectfully demand judgment in their favor and against the Defendant as follows:
c) For the entry of injunctive relief to temporarily, preliminarily, and
permanently prohibit further enforcement of Section 2303 of Title 34
of the Pennsylvania Consolidated Statutes; and
d) That other relief the Court deems just and proper.

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