author: RESTREPO, Circuit Judge.

text:
    Maureen MIRABELLA; John Mirabella v. Susan VILLARD; William Villard; Susan Braun; Robert Braun; Montgomery Township Board of Supervisors; Supervisor Joseph P. Walsh; Supervisor Michael J. Fox; Supervisor Robert J. Birch, Esq.; Supervisor Candyce Fluehr Chimera; Montgomery Township; Supervisor Jeffrey W. McDonnell, Joseph P. Walsh; Jeffrey W. McDonnell, Appellants
    No. 15-3171
    United States Court of Appeals, Third Circuit.
    Argued: July 12, 2016
    (Filed: April 4, 2017)

      Harry G. Mahoney [ARGUED], Peter R. Kulp, Deasey, Mahoney & Valentini, 1601 Market Street, Suite 3400, Philadelphia, PA 19103, Counsel for Appellants Joseph P. Walsh and Jeffrey W. McDonnell
    John Mirabella [ARGUED], 1600 Market Street, Suite 1810, Philadelphia, PA 19103, Counsel for Appellees
    Before: FUENTES, SHWARTZ and RESTREPO, Circuit Judges.

       Honorable Julio M. Fuentes assumed senior status on July 18, 2016.

   OPINION OF THE COURT

RESTREPO, Circuit Judge.

Appellees Maureen and John Mirabella petitioned their local government for assistance in a dispute with their neighbors and, at the same time, threatened the local government with litigation. A local official responded, via email, by barring the Mira-bellas from communicating directly with any members of the local government, other than its counsel. Local officials also threatened to move for sanctions against the Mirabellas for frivolous litigation if they filed suit.

The Mirabellas allege that the government officials violated their First Amendment rights in two ways: (1) by retaliating against the Mirabellas for the exercise of their First Amendment rights and (2) by violating the Mirabellas’ First Amendment right to petition the government for redress of grievances. As to these claims, the District Court denied the Defendants’ motions to dismiss and denied qualified immunity. The government officials now appeal on qualified immunity grounds. For the reasons below, we conclude that the Mirabellas have adequately alleged both a retaliation claim and a violation of their right to petition. The rights allegedly violated, however, were not clearly established for the purpose of qualified immunity. Therefore, we are constrained to reverse.

I

This case arises out of a dispute between the Mirabellas and their neighbors regarding a public wetlands abutting their properties. The wetlands is owned by Montgomery Township, Pennsylvania. The Mirabellas allege that their neighbors extended their backyards into the public wetlands by attempting to fence in the open space, placing playground equipment there and landscaping it.

The Mirabellas complained to the Township, which removed the fence, required the neighbors to move their playground equipment and — initially—required the neighbors to stop landscaping the open space. Nevertheless, the Mirabellas allege, the neighbors continued to “cut and clear” the open space “using driving mowers, weed whackers, push mowers, chainsaws and other means.” App. 39. The Mirabellas continued to complain about this, but the Township ultimately reversed course and gave the neighbors permission to mow the open space.

The Mirabellas viewed the Township’s response as overly permissive and environmentally destructive. For these reasons, the Mirabellas — who are both attorneys— notified the Township Board of Supervisors by email that they intended to sue their neighbors for “encroachment and destruction” of the open space. App. 119. The Mirabellas protested “the Board’s failure to ... protect our natural open spaces,” which put them “in the position of having to sue neighbors in order to see that our environment is preserved.” Id. The Mira-bellas further stated that as the owner of the open space, “the Township will be an indispensable party in this litigation.” Id. Walsh and McDonnell interpreted this as a threat that the Mirabellas would sue the Township.

On the same day the Mirabellas ostensibly threatened litigation, the Township responded. Appellant Joseph Walsh, Chairperson of the Board of Supervisors, wrote to the Montgomery Township Solicitor and copied the Mirabellas. Walsh wrote that “[i]f the Township is sued by the Mirabel-las make sure our insurance counsel motions the court for sanctions ... as they have no standing to file such a frivolous action.” App. 121. Another member of the Board of Supervisors, Appellant Jeffrey McDonnell, concurred later that evening. He wrote: “I agree. I would also suggest our [attorney] put them on notice now that we will seek san[c]tions so there’s no surprise.” App. 126.

John Mirabella replied within minutes defending the potential lawsuit as non-frivolous. He requested that the Board of Supervisors provide “any legal authority to support the Board’s decision and your claim that we do not have standing.” App. 123.

Later that night, at 11:26 p.m., Walsh replied from his iPhone. Walsh’s email— later an impetus for the Mirabellas’ First Amendment claims — stated:

Dear Mr[.] Mirabella and his wife attorney. Please direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly. Do not call me at work, email me at work or speak to me in public or private. The dye is caste [sic].

App. 125 (emphasis added). Walsh copied this “no contact” email to numerous Township officials, including the Board of Supervisors, Township Manager, Planning and Zoning Director and members of the police department.

Thereafter, the Mirabellas attended one meeting of the Board of Supervisors, at which they allegedly protested the destruction of the open space and expressed their “dismay and anger” over Walsh and McDonnell’s emails. App. 45.

The Mirabellas filed this lawsuit under 42 U.S.C. § 1983, alleging, inter alia, violations of their First Amendment rights. The defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), in which they asserted a qualified immunity defense. The District Court dismissed all of the Mirabellas’ claims except for certain First Amendment claims against Walsh and McDonnell.

In its opinion, the District Court construed the Mirabellas’ surviving First Amendment claims as alleging two violations: (1) retaliation against the Mirabellas for the exercise of their First Amendment rights to free speech and to petition the government for redress of grievances and (2) a direct violation of the Mirabellas’ First Amendment right to petition the government. As to both claims, the District Court found that the Mirabellas had pled a constitutional violation. The District Court denied qualified immunity via a very brief analysis. Walsh and McDonnell now appeal, alleging that they are entitled to qualified immunity on both claims.

II

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction over the District Court’s denial of qualified immunity under 28 U.S.C. § 1291 and the collateral order doctrine. L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 240 (3d Cir. 2016). The qualified immunity issue before us is solely a question of law and is, therefore, immediately appealable as a final order. Zaloga v. Borough of Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016). We exercise plenary review. L.R., 836 F.3d at 241. As this is an appeal from the denial of a motion to dismiss, we accept the allegations in the complaint as true. Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 166 (3d Cir. 2016).

Ill

“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Id. at 741, 131 S.Ct. 2074 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

To determine if a right is clearly established, we first look for Supreme Court precedent. Mammaro, 814 F.3d at 169. If there is none, we may rely on a “ ‘robust consensus of cases of persuasive authority’ in the Court[s] of Appeals.” Id. (quoting Taylor v. Barkes, — U.S. -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam)). “[Although earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” L.R., 836 F.3d at 248 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

We exercise our discretion to decide which of the two prongs of the qualified immunity analysis to address first “in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). For reasons of constitutional avoidance, we may begin by determining whether a right was clearly established. Camreta v. Greene, 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011). Yet in other cases “following the two-step sequence — defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials.” Id. at 707, 131 S.Ct. 2020.

In the Mirabellas’ case, we exercise our discretion to follow the two-step sequence. We do so in order to guide local officials in safeguarding the First Amendment rights of constituents in challenging circumstances: when the government’s constituents are also litigation adversaries. See Am. Canoe Ass’n, Inc. v. City of St. Albans, 18 F.Supp.2d 620, 621 (S.D.W.Va. 1998) (observing that the “[g]overnment remains the servant of the people, even when citizens are litigating against it”).

IV

The Mirabellas allege — in the first of two claims on appeal — that local officials Walsh and McDonnell retaliated against them for the exercise of their First Amendment rights. We conclude that the Mirabellas have pled a retaliation claim based upon Walsh’s “no contact” email, but not Walsh and McDonnell’s threat that they would move for litigation sanctions. As to the second prong of qualified immunity, we conclude that the right was not clearly established.

A

“Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected right.’” Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (citation omitted). To plead retaliation for the exercise of First Amendment rights, a plaintiff must allege “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citation omitted); see also Mack v. Warden Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (applying this test to a claim of retaliation for the exercise of the right to petition).

1

The first element of the Mira-bellas’ retaliation claim is straightforward. The parties do not dispute that the Mira-bellas exercised their First Amendment rights — both their right to free speech and their right to petition the government for redress of grievances. The Mirabellas engaged in constitutionally protected speech and petitioning when they protested the Township’s failure to protect the open space and threatened litigation. “Both the Free Speech Clause and the Petition Clause protect ‘personal expression’ — both expression generally and expression directed towards the government for the specific purpose of asking it to right a wrong.” Mack, 839 F.3d at 297-98.

2

As to the second element of the retaliation claim, the parties dispute whether there was a retaliatory act “sufficient to deter a person of ordinary firmness.” Thomas, 463 F.3d at 296. We conclude that Walsh’s “no contact” email met this standard, but that Walsh and McDonnell’s threat that they would move for litigation sanctions did not.

As a preliminary matter, we reject Walsh and McDonnell’s argument that the second element cannot be satisfied because the Mirabellas were undeterred in the exercise of their constitutional rights and, for example, attended one meeting of the Board of Supervisors after Walsh sent the “no contact” email. This argument fails because whether an act is retaliatory is an objective question. Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). We ask whether the act would deter a person of ordinary firmness, not whether the plaintiff was deterred. There is good reason for such a rule: we will not “ ‘reward’ government officials for picking on unusually hardy speakers. At the same time, we recognize that government officials should not be liable when the plaintiff is unreasonably weak-willed.... ” Bennett v. Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005) (citation omitted). We now consider the two retaliatory acts alleged.

i

The first allegedly retaliatory act is Walsh’s “no contact” email. In this email, Walsh prohibited the Mirabellas from contacting government employees, as follows: “Please direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly. Do not call me at work, email me at work or speak to me in public or private. The dye is caste [sic].” App. 125. Construing all inferences in favor of the Mirabellas, we agree with the District Court that this email “is significantly more than a direction to contact the town attorney regarding the [threatened] lawsuit. This is a complete prohibition against Plaintiffs contacting town officials and employees for any reason.” App. 17. In short, Walsh barred the Mirabellas from communicating directly with their local government, for any reason, indefinitely. This prohibition was “sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” Thomas, 463 F.3d at 296.

In concluding that Walsh’s “no contact” email was retaliatory, we draw upon and distinguish a similar First Amendment retaliation case decided by the Second Circuit. In Tuccio v. Marconi, a real estate developer filed a lawsuit against a town where he sought to do business. 589 F.3d 538, 540 (2d Cir. 2009). Because of this pending lawsuit, town officials refused to meet with the developer in person, and advised him to communicate with them in writing. The developer then filed a second lawsuit, alleging that the town officials’ refusal to meet with him was retaliatory. After a trial on the retaliation claim, judgment was entered for the town and the Second Circuit affirmed. The Second Circuit held that the town’s decision not to meet with the developer — a litigation adversary — was not a retaliatory act. Id. at 541-42. In reaching this conclusion, Tuccio emphasized that the developer “had no business with the Town” other than the lawsuit. Id. at 541. Tuccio further explained that “the result might be different” if the prohibition had “been implemented in a manner that effectively denied Tuccio access to permits or opportunities to do business with the Town,” but that the trial record demonstrated that this had not occurred. Id.

The result is different in the Mirabellas’ case, because unlike the developer in Tuc-cio, the Mirabellas have alleged “business with” their local government. Id. The Mir-abellas live in Montgomery Township and have alleged a myriad of interests, for which they may petition the Township. Walsh’s email bars the Mirabellas from communicating with Township employees about any topic, not only the threatened litigation, as to which limits on communication might have been “prudent.” Id. at 542. Thus, we conclude that Walsh’s “no contact” email was a retaliatory act.

ii

The Mirabellas also allege that both Walsh and McDonnell retaliated against them by stating that if the Mira-bellas sued the Township, the Township would move for sanctions for frivolous litigation. Significantly, this alleged act of retaliation is a particular kind — one taking the form of the official’s own speech. McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000)); see also Zaloga, 841 F.3d at 176. In such circumstances we employ a more specific test to determine whether the official’s speech amounts to a retaliatory act. We ask whether there was “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.” McLaughlin, 271 F.3d at 573 (quoting Suarez Corp. Indus., 202 F.3d at 687).

This standard is not met by Walsh and McDonnell’s statements that if the Mira-bellas sued the Township, they would move a court for sanctions. In such statements, the “quantum of governmental authority brought to bear” was minimal. R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85, 88 (3d Cir. 1984); see also Novoselsky v. Brown, 822 F.3d 342 (7th Cir. 2016) (holding that there was no retaliatory act where government official filed an attorney disciplinary complaint against the plaintiff and publicly accused him of litigiousness). As such, the Mirabellas’ retaliation claim must succeed, if at all, on Walsh’s “no contact” email, not the threat of motioning for litigation sanctions.

3

The third element of a retaliation claim requires a causal link between a plaintiff’s constitutionally protected activity and the retaliatory act. Thomas, 463 F.3d at 296. The required link is “but-for” causation. Hartman, 547 U.S. at 256, 126 S.Ct. 1695. “[A]ny ... plaintiff charging official retaliatory action ... must prove the elements of retaliatory animus as the cause of injury, and the defendant will have the ... opportunity to respond to a prima facie case by showing that the action would have been taken anyway, independently of any retaliatory animus.” Id. at 260-61, 126 S.Ct. 1695. One method of proving a causal link, applicable here, is “unusually suggestive temporal proximity.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The Mirabellas have alleged such a causal link. On the very same day that the Mirabellas emailed the Township to protest its treatment of the open space, and to threaten litigation, Walsh responded with the “no contact” email.

Although this “would normally be enough to carry a complaint across the starting line in the face of a Rule 12(b)(6) motion,” we must address one counterargument. Maloy v. Ballori-Lage, 744 F.3d 250, 253 (1st Cir. 2014). Walsh argues that there is “another explanation that is so obviously correct as to render the charge of improper motivation implausible.” Id. (citation omitted); see also George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (holding that there was an alternative explanation (airline security) that was “obvious” on the fact of the complaint). Specifically, Walsh contends that his email was merely a demand that the Mirabellas — both attorneys — follow the “no contact” rule of the Pennsylvania Rules of Professional Conduct. This argument fails because Walsh’s prohibition swept far more broadly than the rule.

Rule 4.2 of the Rules of Professional Conduct provides that a lawyer, representing a client, “shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Pa.R.P.C. 4.2. This prohibition is narrower than Walsh’s “no contact” email, for at least three reasons: Rule 4.2 (1) is limited to the subject of the representation; (2) is limited to a person represented by counsel in the matter and (3) contains an “authorized by law” exception, which safeguards constitutionally-protected expression. Id.; see also Pa.R.P.C. 4.2, cmt. ¶¶ 4, 5, 7. Walsh’s “no contact” email contained none of these three limitations.

Thus, we reject Walsh’s attempt to justify his email by reference to Rule 4.2. The Mirabellas have pled causation, the final element of their First Amendment retaliation claim.

B

Having held that the Mirabellas adequately alleged a First Amendment retaliation claim based upon Walsh’s “no contact” email, our inquiry is not complete. We must nevertheless determine whether the right was clearly established under the second prong of qualified immunity.

In this analysis we are mindful that we must not “define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074. More specifically, the Supreme Court has given us guidance on defining a right in the First Amendment retaliation context. In Reichle v. Howards, the Supreme Court clarified that it is too broad to define the right as the “right to be free from retaliation for one’s speech.” 566 U.S. 658, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012). Conversely, Reichle held that it is proper to define a right as the “right to be free from a retaliatory arrest that is otherwise supported by probable cause.” Id.

Reichle is directly applicable to the Mir-abellas’ retaliation claim. As in Reichle, the disputed issue here is whether it was clearly established that the defendant’s act was retaliatory. Paralleling Reichle, we define the right at issue as the right to be free from a retaliatory restriction on communication with one’s government, when the plaintiff has threatened or engaged in litigation against the government.

This right was not clearly established when Walsh sent the “no contact” email. The Mirabellas have identified neither Supreme Court precedent nor a “robust consensus of cases of persuasive authority.” Mammaro, 814 F.3d at 169 (citation omitted). The closest case we have identified, Tuccio, held that the refusal of town officials to meet with a litigation adversary did not amount to First Amendment retaliation. Tuccio, 589 F.3d at 541-42. Thus, Walsh is entitled to qualified immunity on the Mirabellas’ First Amendment retaliation claim.

V

The Mirabellas also assert a direct violation of their First Amendment right to petition the government for redress of grievances, again based upon Walsh’s “no contact” email. We conclude that the Mira-bellas have pled a constitutional violation, but that the right was not clearly established for qualified immunity purposes.

A

The First Amendment of the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech, ... or the right of the people ... to petition the Government for a redress of grievances.” U.S. Const, amend. I. These two guarantees are known, respectively, as the Speech Clause and the Petition Clause.

The right to petition the government is “one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’ ” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (quoting United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967)). “The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (1875). Petitioning serves numerous, fundamental interests of petitioners and the government alike. It is “essential to freedom,” liberty and self-government. Borough of Duryea v. Guarnieri, 564 U.S. 379, 382, 394, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011); see also McDonald v. Smith, 472 U.S. 479, 483, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). Petitions contribute to the “public airing” of disputes, the “evolution of the law,” and the use of government as an “alternative to force.” BE & K Constr., 536 U.S. at 532, 122 S.Ct. 2390.

In Borough of Duryea v. Guarnieri, the Supreme Court recently renewed its Petition Clause jurisprudence, with a focus on the historical underpinnings of the right. 564 U.S. at 387-97, 131 S.Ct. 2488; see also Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause 104-28 (2012) (chronicling the history of petitioning in the United States, including its importance in the abolitionist movement). The Supreme Court described the “special concerns” of the Petition Clause, as compared to the Speech Clause, as follows: “The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs.” Id. at 388, 131 S.Ct. 2488 (emphasis added).

A petition may “undoubtedly” consist of a “personal grievance addressed to the government.” Id. at 394, 131 S.Ct. 2488. But “[petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole.” Id. at 395, 131 S.Ct. 2488. A petition need not “take[ ] a specific form,” and may include an oral grievance. Mack, 839 F.3d at 299 (citation omitted).

A petition enjoys constitutional protection whether it is addressed, as here, to a local government, or to a state or national government. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 889, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (petition and boycott directed at county officials); Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (protest of segregated public library); Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir. 2010) (oral request to city councilperson); Van Deelen v. Johnson, 497 F.3d 1151, 1158 (10th Cir. 2007) (appeal of county property tax assessment). A petition may be directed towards any department of government, including the courts. Guarnieri, 564 U.S. at 387, 131 S.Ct. 2488; BE & K Constr., 536 U.S. at 525, 122 S.Ct. 2390; see also Anderson v. Davila, 125 F.3d at 162-63 (holding that the right to petition includes actions taken in anticipation of litigation).

At the- same time, the right to petition is not “[u]nrestrained,” Guarnieri, 564 U.S. at 390, 131 S.Ct. 2488, or “absolute,” McDonald, 472 U.S. at 484, 105 S.Ct. 2787. For example, the Supreme Court has held that “petitions to the President that contain intentional and reckless falsehoods ‘do not enjoy constitutional protection.’ ” McDonald, 472 U.S. at 484, 105 S.Ct. 2787 (citation omitted). Accordingly, we may ask whether the government may “nevertheless burden” the right to petition, given countervailing government interests. BE & K Constr., 536 U.S. at 535, 122 S.Ct. 2390.

To balance such competing interests, courts have generally applied Speech Clause precedent, rather than any freestanding Petition Clause doctrine. Guarnieri, 564 U.S. at 389, 131 S.Ct. 2488 (acknowledging this trend); see also Galena v. Leone, 638 F.3d 186, 197 n.7 (3d Cir. 2011) (considering speech and petition claims as one); Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004) (same). But Guamieri clarified that we cannot do so automatically. For while the right to petition and the right to free speech “share substantial common ground,” they are not “identical in their mandate or their purpose and effect.” Guarnieri, 564 U.S. at 388, 131 S.Ct. 2488. Accordingly, the Supreme Court cautioned that “Speech Clause precedents [do not] necessarily and in every case resolve Petition Clause claims.” Id. Despite this guidance, however, Guamieri did apply Speech Clause precedent, rather than forge new ground under the Petition Clause. Id. at 382-83, 131 S.Ct. 2488.

B

With this background in mind, we turn to the Mirabellas’ claim that Walsh violated their right to petition by prohibiting them from contacting any Township employees, other than its counsel. To answer this question, we will apply free speech precedent, as the Supreme Court did in Guamieri. Id. We conclude that this is appropriate given the “extensive common ground” of the two rights, and the Supreme Court’s own example. Id. at 389, 131 S.Ct. 2488. As such, our analysis would be identical if the Mirabellas had framed their argument as a free speech claim, rather than a violation of their right to petition the government.

1

Drawing upon free speech precedent, the Mirabellas encourage us to apply a test that is highly deferential to their First Amendment rights, on at least two theories. First, the Mirabellas assert that Walsh’s email is a content-based restriction on their speech. Cf. Nat'l Assoc. for the Advancement of Multijurisdiction Practice (NAAMJP) v. Castille, 799 F.3d 216, 222-23 (3d Cir. 2015) (explaining that speaker-based restrictions on speech are subject to heightened scrutiny when they reflect content-based preferences). Second, the Mirabellas assert that Walsh’s email is a restriction on their political speech. See Citizens United v. FEC, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

We decline to determine whether these theories apply. Rather, we will assume for the sake of argument that Walsh’s “no contact” email is a content-neutral, “time, place or manner” restriction on the Mira-bellas’ speech. It is unnecessary to apply greater scrutiny to the restriction because, as explained below, even under a standard more deferential to Walsh, the “no contact” email is unconstitutional. Cf. McCullen v. Coakley, — U.S. -, 134 S.Ct. 2518, 2530, 189 L.Ed.2d 502 (2014) (recognizing cases that make such an assumption, but declining to adopt the same approach).

Given a content-neutral, “time, place or manner” restriction on speech, our inquiry is whether the prohibition is narrowly tailored. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). We ask whether the restriction “ ‘burdenfe] substantially more speech than is necessary to further the government’s legitimate interests.’” McCullen, 134 S.Ct. at 2535 (quoting Ward, 491 U.S. at 799, 109 S.Ct. 2746). The restriction need not be the least restrictive means of furthering the government’s interests. Id. (quoting Ward, 491 U.S. at 798, 109 S.Ct. 2746). However, the government may not restrict speech “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id. (quoting Ward, 491 U.S. at 799, 109 S.Ct. 2746). The restriction on speech must also “leave open ample alternative channels for communication of the information.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. The government bears the burden to demonstrate that the restriction is constitutionally permissible. Startzell v. City of Phila., 533 F.3d 183, 201 (3d Cir. 2008).

2

Applying the time, place or manner test, we begin with the alleged governmental interest. Walsh alleges an interest in preventing the Mirabellas, litigation adversaries, from communicating with Township employees per Rule 4.2 of the Pennsylvania Rules of Professional Conduct. That Rule, the commentary explains, “contributes to the proper functioning of the legal system,” for three reasons: (1) it protects represented persons from “possible overreaching by other lawyers” in the matter; (2) it protects the lawyer-client relationship from interference and (3) it prevents “uncounseled disclosurefs].” Pa.R.P.C. 4.2, cmt. ¶ 1; see also Restatement (Third) of Law Governing Lawyers, supra note 7, § 99(A), cmt. 1Ib (same). These governmental interests are legitimate. But see Restatement (Third) of Law Governing Lawyers, supra note 7, § 101(A), cmt. ¶ b (suggesting that the need for a “no contact” rule is reduced where the represented person is a government entity).

As to the Mirabellas’ interests, they are substantial. Construing all inferences in their favor, the Mirabellas were prohibited from contacting Township officials and employees directly, for any reason, indefinitely. This ban encompasses, inter alia, “normal conversation” and “one-on-one communication” with government officials — forms of expression “historically ... closely associated with the transmission of ideas.” McCullen, 134 S.Ct. at 2536.

Comparing the parties’ interests, the Mirabellas have alleged a burden on their speech substantially greater than necessary to protect the Township’s litigation interests. “[I]t is no answer ... to say ... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression.” Reed v. Town of Gilbert, — U.S. -, 135 S.Ct. 2218, 2229, 192 L.Ed.2d 236 (2015) (alteration in original) (quoting NAACP v. Button, 371 U.S. 415, 438-39, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). Thus, the Mirabellas have alleged a constitutional violation of their right to petition.

C

For the reasons above, the Mira-bellas have alleged a violation of their First Amendment right to petition the government for redress of grievances. Under the second prong of qualified immunity, however, we conclude that the right was not clearly established.

As stated above, we must not “define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074. We therefore define the First Amendment right at issue as the right to be free from a restriction on communicating with one’s government, when the plaintiff has threatened or engaged in litigation against the government. This right was not dearly established.

While other cases have held that there is a clearly established right to petition a local government, those cases did not involve litigation. For example, the Sixth Circuit has held that there is a clearly established right “to petition a local, elected representative for assistance in dealing with local government agencies.” Holzemer, 621 F.3d at 527. Similarly, the Tenth Circuit has held that there is a clearly established right to petition a local government regarding a tax assessment. Van Deelen, 497 F.3d at 1159. These cases, while persuasive, do not establish that “every ‘reasonable official’ ” in Walsh’s position would have understood that his “no Contact” email violated the Mirabellas’ First Amendment rights. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (citation omitted). Thus, Walsh is entitled to qualified immunity on the Mirabellas’ Petition Clause claim.

VI

For the reasons above, we will reverse the judgment of the District Court denying, in part, Appellant Walsh and McDonnell’s motion to dismiss and we will remand with instructions to enter judgment in their favor.

      . We recite the facts only as necessary for the purposes of this appeal, which involves a single count of a nine-count complaint. The only remaining defendants are Appellants Joseph Walsh and Jeffrey McDonnell.

      . The term "no contact” is used to refer to a rule of professional conduct, prohibiting contact with a represented person, regarding the subject of the representation, absent consent or legal authority. 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 39.01 (4th ed. 2016). We discuss Pennsylvania’s rule in more detail below. See infra Part IV(A)(3).

      . We will discuss the First Amendment right to petition the government in greater detail below, in the context of the Mirabellas’ second claim, which alleges a direct violation of their right to petition. As explained below, the right to free speech and the right to petition are not necessarily coextensive, although this is immaterial to our analysis of the Mirabel-las' retaliation claim. See infra Part V(A).

      . At this level, we construe Walsh and McDonnell’s actions as being made "under color of state law” for the purposes of 42 U.S.C. § 1983. This requirement can be met where the defendant either: (1) acts in his or her official capacity or (2) “purports to act according to official power.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). Construing the allegations in the Mirabellas' favor, Walsh and McDonnell either acted or purported to act, respectively, as chairperson and member of the Board of Supervisors.

      . Our analysis of the Mirabellas’ retaliation claim does not turn on whether Walsh’s "no contact” email was itself unconstitutional. In a retaliation claim, we ask instead “whether the Government is punishing the plaintiffs for exercising their rights.” Miller v. Mitchell, 598 F.3d 139, 148 n.9 (3d Cir. 2010) (emphasis in original) (quoting Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997)). We will return to the constitutionality of Walsh’s "no contact” email in the context of the Mirabel-la’s direct Petition Clause claim. See infra Part V(B).

      . This allegation of temporal proximity is itself sufficient. In addition, we infer that Walsh’s "no contact” email was a direct response to the threat of litigation because of Walsh’s concluding message, "[t]he dye is caste [sic].” App. 125. Construing this statement in favor of the Mirabellas, we infer that Walsh meant that the Mirabellas cast the die by threatening litigation against the Township.

      . We pass no judgment as to whether Rule 4.2 of the Pennsylvania Rules of Professional Conduct applies where, as here, lawyers represent themselves pro se. See Hazard et al., supra note 2, § 41.03; Restatement (Third) of the Law Governing Lawyers § 99, cmt. ¶ e (Am. Law Inst. 2016).

      . In other First Amendment retaliation cases, the disputed issue may be whether it was clearly established that the plaintiff's conduct was constitutionally protected. See, e.g., Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 993-94 (3d Cir. 2014).

      . That said, the Petition Clause has been interpreted independently from the Speech Clause in the antitrust context. United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).

      . Although Walsh does not make the argument, we pause to explain that we are not applying another doctrine that would be even more deferential to the government. This doctrine holds, in some contexts, that the government has "additional authority to regulate” attorney speech. In re Kendall, 712 F.3d 814, 825 (3d Cir. 2013). This additional authority is a product of the government’s regulatory authority over bar admissions and attorney discipline. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1066, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991).
      Doctrinally, the regulation of certain attorney speech is one example of the government's additional authority to restrict speech when it "acts in capacities that go beyond being sovereign.” B.H. v. Easton Area Sch. Dist., 725 F.3d 293, 303 (3d Cir. 2013) (en banc) (citing In re Kendall, 712 F.3d at 825). That is, the law distinguishes between the government’s authority to restrict speech (1) as a "sovereign” or (2) as a "property owner, educator, employer, or patron.” Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights, 67 Fordham L. Rev. 569, 584-85 (1998). When the government acts as a sovereign, "robust free speech protection” applies. Id. at 587. But when the government acts in certain other capacities, it may be "freer to place conditions” on speech. Id.

      Walsh, we conclude, acted as a local "sovereign,” not by virtue of any regulatory authority over attorneys. "When acting as sovereign, the government is empowered to impose time, place, and manner restrictions on speech....” B.H., 725 F.3d at 302 (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746). It is this standard that we apply.

      . Walsh's "no contact” email also substantially impairs the Mirabellas’ interests in petitioning the government. Walsh prohibited the Mirabellas from "express[ing] their ideas, hopes, and concerns to their government and their elected representatives,” as the Petition Clause guarantees. Guarnieri, 564 U.S. at 388, 131 S.Ct. 2488 (emphasis added).

      . Because we hold that Walsh’s “no contact” email was not narrowly tailored, we need not reach the additional requirement that a time, place or manner restriction on speech leave open ample alternative channels fer communication. Ward, 491 U.S. at 791, 109 S.Ct. 2746; see, e.g., Johnson v. City & Cty. of Phila., 665 F.3d 486, 493 (3d Cir. 2011) (conducting this analysis).


source: Caselaw Access Project

author: MELLOY, Circuit Judge.

license: Public Domain

text:
    IN RE: Garth F. LANSAW, d/b/a Forever Young Childcare, Deborah Lansaw, Debtors Garth F. Lansaw and Deborah Lansaw v. Frank Zokaites, Appellant
    No. 16-1867
    United States Court of Appeals, Third Circuit.
    Argued December 5, 2016
    (Filed: April 10, 2017)

      Jeffrey M. Robinson, Esq. [ARGUED], Robinson Law Group, 145 Lake Drive, Suite 102F, Wexford, PA 15090, Counsel for Appellant
    Warner Mariani, Esq. [ARGUED], Warner Mariani, LLC, 428 Forbes Avenue, Suite 555, Pittsburgh, PA 15219, Counsel for Appellees
    Before: FISHER, KRAUSE and MELLOY, Circuit Judges.

       Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit, assumed senior status on February 1, 2017.

       Honorable Michael J. Melloy, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

   OPINION OF THE COURT

MELLOY, Circuit Judge.

The filing of a bankruptcy petition operates as an automatic stay of debt collection activities outside of bankruptcy proceedings. 11 U.S.C. § 362(a). If “an individual [is] injured by any willful violation of [the] stay,” that individual “shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” Id. § 362(k)(l). In the present case, Frank Zokaites committed several willful violations of the automatic stay arising from Garth and Deborah Lansaw’s bankruptcy petition. Because of these violations, the Bankruptcy Court awarded the Lansaws emotional-distress damages as well as punitive damages under § 362(k)(l). The District Court affirmed the awards, and Zo-kaites now appeals. We conclude that § 362(k)(l) authorizes the award of emotional-distress damages and that the Lan-saws presented sufficient evidence to support such an award. We also conclude that the Lansaws were properly awarded punitive damages. Accordingly, we will affirm.

I.

A.

The Lansaws operated a daycare in a space leased from Zokaites. Over the course of several years, the relationship between the Lansaws and Zokaites devolved into various disputes. The present dispute arose after the Lansaws entered into a new lease with a different landlord, but before they vacated Zokaites’s property. When Zokaites learned of the new lease, he served the Lansaws with a Notice for Distraint, claiming a lien against the Lansaws’ personal property for unpaid rent. The following day, August 16, 2006, the Lansaws filed for bankruptcy, thereby triggering the automatic stay under 11 U.S.C. § 362(a). Zokaites’s attorney was notified of the bankruptcy filing by a letter dated August 17, 2006.

Zokaites, nevertheless, violated the automatic stay in three separate incidents. First, on August 21, 2006, Zokaites and his attorney visited the Lansaws’ daycare during business hours to take photographs of the Lansaws’ personal property. Although Mrs. Lansaw initially denied Zokaites entry, Zokaites entered the daycare by following a daycare parent inside. Zokaites then entered Mrs. Lansaw’s office and backed her against the wall, getting so close that she could feel his breath. During the incident, Zokaites asked Mrs. Lansaw three times in quick succession, “Do you want to hit me?”

Second, on Sunday, August 27, 2006, Zokaites visited the daycare after business hours and, this time, used his key to enter the building. He observed that the Lan-saws had removed some personal property and plumbing fixtures from the space. Zo-kaites then padlocked and chained the doors. Mrs. Lansaw’s mother, who had arrived to clean the daycare, attempted to stop Zokaites and called the police. A police officer, as well as the Lansaws, arrived at the daycare shortly thereafter. Zokaites suggested that Mrs. Lansaw inform the daycare parents that the daycare would not be open the next day. At the request of a police officer, he allowed Mrs. Lansaw to reenter the daycare and obtain the parents’ contact information. Zokaites, however, insisted that Mrs. Lansaw be escorted in and out of the property by the officer.

After the Lansaws returned home, they received a call from their attorney informing them that Zokaites had left a proposed “interim standstill agreement” in the door of the daycare. It stated that Zokaites would not unchain the daycare doors unless (1) Mrs. Lansaw’s mother agreed that she had not been assaulted by Zokaites, (2) the Lansaws reaffirmed their lease with Zokaites, and (3) the Lansaws ceased removing property from the daycare. The Lansaws informed their attorney that the agreement was not acceptable. They then returned to the daycare, removed the chains themselves, and decided to sleep in the building to prevent Zokaites from chaining the door again. Later that night, Zokaites also returned to the daycare. Before the Lansaws could reach the door, Zokaites removed Mrs. Lansaw’s keys that had been hanging from the inside keyhole and locked the door from the outside. Zo-kaites left with the keys, which included personal keys in addition to the daycare keys, and returned to his vehicle. The Lan-saws called the police once more.

Finally, on August 28, 2006, Zokaites directed his attorney to send a letter to the Lansaws’ new landlord. The letter demanded that the new landlord terminate the Lansaws’ new lease and stated that, if the lease was not terminated, Zokaites would file a complaint. A draft of that complaint was included with the letter. Zokaites’s attorney also admitted having multiple phone calls with the new landlord in an attempt to have the new lease terminated.

B.

For reasons that are unclear, the procedural history of the present action is somewhat complex and spans two separate adversary proceedings. The Lansaws first initiated an adversary proceeding in August 2006 to enjoin Zokaites from committing further violations of the stay. In the same proceeding, they also sought punitive damages, attorney fees, and other relief. After a trial, the Bankruptcy Court entered a December 2006 order finding that Zokaites had violated the stay and granting the Lansaws’ request for an injunction. Although the Bankruptcy Court heard testimony related to emotional distress, it did not make a ruling on damages or attorney fees in its memorandum opinion. See Lansaw v. Zokaites (In re Lansaw) (“Lansaw I”), 358 B.R. 666, 672, 675 (Bankr. W.D. Pa. 2006).

The Lansaws again raised the issue of damages before the Bankruptcy Court in February 2007. This time, they did so in a counterclaim to Zokaites’s proof of claim in the main bankruptcy case. This counterclaim for damages, however, also went unresolved. Approximately five years later, in December 2012, the main bankruptcy case was reassigned to the Honorable Thomas P. Agresti. After a status conference revealed that the counterclaim for damages was yet to be settled, the Bankruptcy Court determined that the best way to resolve the issue was to initiate a new adversary proceeding.

The new adversary proceeding, now before us in the present case, was tried in August 2014. At the outset of the trial, the Bankruptcy Court noted it was “building on” what the previous judge had already found in 2006, namely, that Zokaites had willfully violated the automatic stay. Lansaw II, 2015 WL 224093, at *3. The previous judge, however, had not made “definitive findings with regard to certain details of those violations,” so the Bankruptcy Court again heard testimony regarding the violations. Id. at *13.

The Lansaws also presented evidence of emotional distress, which the Bankruptcy Court summarized as follows:

The only evidence that the [Lansaws] presented as to emotional stress was their own testimony, though that was often compelling. Mrs. Lansaw testified that she continues to have nightmares about Zokaites entering the building and taking her business away. After these experiences she sometimes wakes up screaming and crying. She stated that when she is out in public and happens to see someone who looks like Zokaites she can experience moments of “sheer fear.” She testified that she has lost trust in others and this has affected her relationship with friends. She is taking prescription medication for depression and an ulcer, conditions which she attributes to stress from Zokaites, beginning with [an incident prior to the stay violations] and continuing thereafter. She felt physically threatened when Zokaites entered her office on August 21, 2006, and backed her up to a wall. Mrs. Lansaw acknowledged that she has not sought psychological counseling, but said she is considering doing so.
Mr. Lansaw testified about the effects on his wife that he has observed. He said that she has changed markedly since the incidents involving Zokaites. She just goes to work and comes home, rarely going out in public, avoiding human contact, and not enjoying life. He testified to similar effects on himself, stating that he has become very withdrawn and has a fear of making new friendships. He testified that he has only one friend who understands what he has gone through and he has no one else to talk to about it.

Id. at *7-8 (citations omitted). The Bankruptcy Court found this testimony credible and also noted that it was consistent with the previous judge’s 2006 decision. The 2006 decision states that “Mrs. Lansaw was in tears in her various appearances before the Court and during her testimony.” Lansaw I, 358 B.R. at 672.

The Bankruptcy Court found that Zo-kaites’s stay violations caused the Lansaws at least some emotional distress. In so finding, the Bankruptcy Court considered the Lansaws’ credible testimony, the egregious nature of Zokaites’s violations, and the 2006 trial notes made and docketed by the previous judge. The Bankruptcy Court, however, acknowledged that factors other than Zokaites’s stay violations also contributed to the Lansaws’ emotional distress. As a result, the Bankruptcy Court “discounted” the actual damages award, Lansaw II, 2015 WL 224093, at *10, ultimately awarding the Lansaws $7,500 for their emotional distress and $2,600 in attorney fees. The Bankruptcy Court also awarded the Lansaws $40,000 in punitive damages.

Zokaites appealed to the District Court, which affirmed. Zokaites filed this timely appeal.

II.

The Bankruptcy Court had jurisdiction under 28 U.S.C. §§ 157 and 1334; the District Court had jurisdiction under 28 U.S.C. § 158(a); and we have jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291. “Our review of the District Court’s decision effectively amounts to review of the [Bankruptcy [C]ourt’s opinion in the first instance.” In re Allen, 768 F.3d 274, 278-79 (3d Cir. 2014) (quoting In re Hechinger Inv. Co. of Del., 298 F.3d 219, 224 (3d Cir. 2002)). We review the Bankruptcy Court’s factual findings for clear error and its conclusions of law de novo. Payne v. Lampe (In re Lampe), 665 F.3d 506, 513 (3d Cir. 2011). “A finding of fact is clearly erroneous only if it is ‘completely devoid of minimum evidentiary support displaying some hue of credibility or bears no rational relationship to the supportive evidentiary data.’ ” Havens v. Mobex Network Servs., LLC, 820 F.3d 80, 92 (3d Cir. 2016) (quoting Berg Chilling Sys., Inc. v. Hull Corp., 369 F.3d 745, 754 (3d Cir. 2004)). Finally, “[w]e review the constitutionality of the punitive damages award de novo, but we must accept any findings of fact ... unless they are clearly erroneous.” CGB Occupational Therapy, Inc. v. RHA Health Servs., Inc., 499 F.3d 184, 189 (3d Cir. 2007).

III.

Zokaites argues that the Lansaws introduced insufficient evidence to support an award of emotional-distress damages under 11 U.S.C. § 362(k)(l). That statute provides, with an exception not applicable here, that “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(k)(l) (emphasis added). Accordingly, as a threshold matter, we must first determine whether the term “actual damages” under § 362(k)(l) authorizes recovery for emotional distress. We conclude that it does, as discussed below. We then turn to whether the Lansaws presented sufficient evidence to support emotional-distress damages.

A.

“Because the term 'actual damages’ has [a] chameleon-like quality, we cannot rely on any all-purpose definition but must consider the particular context in which the term appears.” FAA v. Cooper, 566 U.S. 284, 294, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012). The term has been interpreted in some contexts to include damages for emotional distress and, in others, to only authorize damages for financial harm. Id. at 292-93, 132 S.Ct. 1441 (collecting cases). This Court has not yet had occasion to address whether, in the context of § 362(k)(l), the term “actual damages” includes emotional-distress damages.

We do not, however, write upon a blank slate; Zokaites cites to numerous decisions by other courts considering the issue. Three circuits have expressly concluded that, under § 362(k)(l), emotional-distress damages are available for willful violations of the automatic stay. See Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1271 (11th Cir. 2014); Dawson v. Washington Mut. Bank, F.A. (In re Dawson), 390 F.3d 1139, 1148 (9th Cir. 2004), abrogation on other grounds recognized in Gugliuzza v. FTC (In re Gugliuzza), 852 F.3d 884, 2017 WL 1101094, at *8-9 (9th Cir. Mar. 24, 2017); Fleet Mortg. Grp., Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir. 1999). Two circuits have left open the possibility that emotional-distress damages may be available in some circumstances. See Young v. Repine (In re Repine), 536 F.3d 512, 522 (5th Cir. 2008); Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001). And one district court has rejected the notion that emotional-distress damages are available as “actual damages” under the statute. See United States v. Harchar, 331 B.R. 720, 732 (N.D. Ohio 2005). We consider three representative decisions in turn.

1.

In Harchar, the Northern District of Ohio noted that § 362(k)(l) “is indisputably an ambiguous statute with a dearth of legislative history.” Id. The court further noted that § 362(k)(l) was not enacted with the automatic stay in 1978; rather, “[t]he 1978 Act provided no mechanism for enforcement of the automatic stay — perhaps due to [Congress’s] expectation that enforcement would continue via procedures for contempt of court.” Id. at 729. Indeed, prior to the automatic stay’s codification in 1978, contempt was “the accepted procedure for enforcement of stay violations.” Id.

The Harchar court noted, however, that questions surrounded the propriety of bankruptcy judges enforcing the automatic stay — now a creature of statute and not court order — through contempt procedures. Id. at 730 (“[R]eliance on contempt power to remedy violations of § 362 had been widely criticized.” (quoting Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 422 (6th Cir. 2000))). Further, the court noted that the constitutional authority of bankruptcy judges to use contempt procedures was cast into doubt after the Supreme Court’s 1982 decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Harchar, 331 B.R. at 730. The court inferred that these circumstances informed Congress’s decision to enact § 362(k)(l) because the provision was enacted as part of the Bankruptcy Amendments and Federal Judgeship Act of 1984. Id. The court therefore concluded, “[T]here can be little doubt that when [§ 362(E)(1)] was enacted in 1984, Congress was concerned not with providing debtors compensation for emotional harms, but with providing explicit statutory authorization for the ‘only previously available remedy for a stay violation: Contempt.’ ” Id. (quoting In re Bivens, 324 B.R. 39, 42 (Bankr. N.D. Ohio. 2004)). Additionally, the court stated, “There is little indication that awarding damages for emotional harm was commonplace under the bankruptcy court’s traditional contempt procedures.” Id.

Given this history of the contempt remedy, Congress’s demonstrated ability to clearly authorize emotional-distress damages, and Congress’s waiver of sovereign immunity under the statute, the Harchar court held that emotional-distress damages were not available under § 362(k)(l). Id. at 732. In so doing, the court acknowledged Congress intended, at least in part, that the automatic stay protect against psychological harm. Id. at 731. But, the court reasoned, § 362(k)(l)’s provisions authorizing punitive damages and attorneys’ fees would “effectively address[]” Congress’s concerns about emotional harm and that “it was incumbent upon Congress” to “explicit[ly] reference ... ‘emotional pain’ or ‘mental anguish’ ” if it intended to authorize emotional-distress damages as compensatory damages. Id. at 732.

2.

In Aiello, the Seventh Circuit was skeptical of a bankruptcy court’s ability to award emotional-distress damages, but it left open the possibility that such damages might be available under § 362(k)(l). The court noted that the automatic stay is a recent codification of the more-than-a-century-old power of courts to stay collection efforts — a power that originated long before “the courts [grew] more confident of their ability to sift and value claims of emotional distress.” Aiello, 239 F.3d at 880. According to that court, the automatic stay’s protection “is financial in character; it is not protection of peace of mind.” Id. at 879. The court further reasoned, “There is no indication that Congress meant to change the fundamental character of bankruptcy remedies by enacting [§ 362(k)(l) ].” Id. at 881. And, the court noted, nothing prohibits a debtor from bringing a suit under state tort law for emotional injury. See id. at 880. The court therefore concluded that “[t]he office of [§ 362(k)(l) ] is not to redress tort violations but to protect the rights conferred by the automatic stay.” Id.

Nevertheless, the Seventh Circuit theorized that considerations of judicial economy “might” permit an award for emotional distress under § 362(k)(l) where the plaintiff is already seeking damages for financial injury. Id. Noting that no such financial injury was alleged in the case before it, the court held that the plaintiff in Aiello was not entitled to emotional-distress damages for the defendant’s willful violation of the automatic stay. Id.

3.

The Ninth Circuit came to yet a different conclusion in Dawson. There, the court concluded that “pecuniary loss is not required in order to claim emotional distress damages” under the statute. Dawson, 390 F.3d at 1149 (emphasis added). In coming to this conclusion, the court found it necessary to turn to the legislative history behind the automatic-stay provision. See id. at 1146-48. Quoting extensively from the House Report for the Bankruptcy Reform Act of 1978, the court emphasized that Congress enacted the automatic stay not only to provide creditors financial protection, but also to provide “the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debt- or to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.” Id. at 1147 (emphasis added) (quoting H.R. Rep. No. 95-595, at 340 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963, 6296-97); see also Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.), 973 F.2d 1065, 1074 (3d Cir. 1992) (quoting the same language).

The Ninth Circuit further noted Congress’s concern with creditor collection tactics, which can “take[ ] the form of abusive phone calls at all hours, including at work, threats of court action, attacks on the debtor’s reputation, and so on. The automatic stay at the commencement of the case takes the pressure off the debtor.” Dawson, 390 F.3d at 1147-48 (quoting H.R. Rep. No. 95-595, at 125-26). Accordingly, the court reasoned:

Reading the legislative history as a whole, we are convinced that Congress was concerned not only with financial loss, but also — at least in part — with the emotional and psychological toll that a violation of a stay can exact from an ... individual. Because Congress meant for the automatic stay to protect more than financial interests, it makes sense to conclude that harm done to those non-financial interests by a violation are cognizable as “actual damages.” We conclude, then, that the “actual damages” that may be recovered by an individual who is injured by a willful violation of the automatic stay include damages for emotional distress.

Id. at 1148 (citation and footnote omitted).

4.

We find Dawson to be the better approach. As the Harchar court noted, § 362(k)(l) “is indisputably an ambiguous statute with a dearth of legislative history.” 331 B.R. at 732. The best way to resolve this dilemma is not to make inferences from the doubts surrounding the general authority of bankruptcy courts in 1984, see id. at 730, but rather to look to the specific interests that Congress intended to protect when it enacted the automatic-stay provision just a few years earlier, see Dawson, 390 F.3d at 1146-48. We conclude, like the Dawson and Harchar courts, that Congress intended the automatic stay to protect both financial and non-financial interests. And, with those interests in mind, we join a growing number of circuits by expressly concluding that “actual damages” under § 362(k)(l) include damages for emotional distress resulting from a willful violation of the automatic stay. See Dawson, 390 F.3d at 1148; Lodge, 750 F.3d at 1271; Fleet Mortg., 196 F.3d at 269.

Of course, we acknowledge that the legislative history for the automatic stay, enacted in 1978, does not directly address § 362(k)(l), which was enacted in 1984. Nonetheless, the automatic stay’s legislative history remains instructive: If the automatic stay was meant to protect against non-pecuniary emotional harm, it is only logical that Congress would intend to include damages resulting from that harm when it introduced the award of “actual damages” as the enforcement mechanism six years later. For the same reason, we disagree with the Harchar and Aiello courts that there is no indication Congress intended to break from past bankruptcy practice. By seeking to protect against non-pecuniary emotional harm with the automatic stay and by enacting the “actual damages” enforcement provision soon thereafter, Congress sufficiently indicated a departure from any prior practice that may have neglected emotional harms resulting from stay violations. See Hamilton v. Lanning, 560 U.S. 505, 516, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010) (“[W]e ‘will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.’” (quoting Travelers Cas. & Surety Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 454, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007))). Further, while the Harchar court concluded that Congress’s concerns about non-pecuniary harms would be “effectively addressed” through the provision for punitive damages and attorneys’ fees, see 331 B.R. at 732, we see no reason to infer that Congress intended to distinguish between the pecuniary and non-pecuniary injuries when it adopted a system of compensatory damages as a means of enforcing stay violations.

Finally, we need not and do not decide whether financial injury is a necessary predicate to recovery for emotional distress under the statute. Unlike the plaintiff in Aiello, the Lansaws incurred financial injury in the form of attorneys’ fees when they sought to enjoin further violations of the stay by Zokaites. See Aiello, 239 F.3d at 880; see also 11 U.S.C. § 36200(1) (“[A]n individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys’ fees.... ” (emphasis added)).

B.

Having determined that § 362(k)(l) authorizes the award of emotional-distress damages, we consider what evidence is required to support such an award. Zo-kaites argues that the Lansaws should have been required to provide medical documentation or expert medical testimony to support their claims of emotional distress. According to Zokaites, this medical evidence was necessary to corroborate the Lansaws’ testimony that they experienced emotional distress and that this distress was in fact caused by Zokaites’s stay violations. Zokaites further argues that, given the lack of this evidence, the Bankruptcy Court’s award was too speculative.

Depending on the circumstances of each individual case, corroborating medical evidence may be required to prove emotional harm and causation. But we decline to adopt a bright-line rule requiring such evidence to prove emotional-distress damages under § 362(k)(l). As we have concluded in the context of other federal statutes, “we see no reason to require that a specific type of evidence be introduced to demonstrate injury in the form of emotional distress.” Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 36 (3d Cir. 1994) (considering the evidence required to prove emotional distress in § 1983 cases); see also Cortez v. Trans Union, LLC, 617 F.3d 688, 720 (3d Cir. 2010) (declining, in the context of the Fair Credit Reporting Act, to adopt a “standard requiring ‘a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award [for emotional distress]’ ” (quoting Cousin v. Trans Union Corp., 246 F.3d 359, 371 (5th Cir. 2001))). And we agree with the Bankruptcy Court that, at least where a stay violation is patently egregious, a claimant’s credible testimony alone can be sufficient to support an award of emotional-distress damages. See Dawson, 390 F.3d at 1150. “We are confident that courts ... can ensure that plaintiffs recover only for actual injury even in the absence of expert medical testimony in such cases.” Bolden, 21 F.3d at 36.

We conclude, moreover, that the Lansaws presented sufficient evidence of emotional distress to support the Bankruptcy Court’s award. Testimony at trial demonstrated that Zokaites willfully and egregiously violated the automatic stay. On one occasion, Zokaites arrived at the Lan-saws’ business — a daycare — during business hours and, after he was initially denied entry, entered the daycare, backed Mrs. Lansaw against the wall, and asked her three times whether she wanted to hit him. On another occasion, Zokaites chained the doors to the daycare (albeit on a weekend) and refused to unchain the doors unless the Lansaws reaffirmed their lease with Zokaites. And, on yet another occasion, Zokaites attempted to have the Lan-saws’ lease with their new landlord terminated.

In short, Zokaites did not violate the stay with a mere collections call; rather, he repeatedly — at times, physically and in the presence of children entrusted to the Lan-saws’ care — attempted to intimidate the Lansaws. The Bankruptcy Court found the Lansaws’ testimony on these incidents credible and dismissed Zokaites’s testimony as “attempting to downplay or mitigate the seriousness of his misconduct.” Lansaw II, 2015 WL 224093, at *15. We cannot, as a result, say that the Bankruptcy Court clearly erred in finding that Zo-kaites’s violations were so egregious “that a reasonable person in the position of the [Lansaws] would be expected to suffer some psychological harm as a result of what happened.” Id. at *9.

Neither can we say that the Bankruptcy Court clearly erred in finding Zo-kaites’s stay violations did in fact cause emotional harm. Zokaites lists numerous stressors — e.g., a carbon monoxide poisoning incident, legal problems with a child, Zokaites’s pre-automatic-stay conduct, and the inherent stress of bankruptcy — that may have caused the Lansaws’ emotional distress. He argues that, absent extrinsic evidence linking the stay violations to the Lansaws’ emotional distress, the Bankruptcy Court could not make a determination that his stay violations, rather than the non-actionable stressors, caused the distress. Emotional distress, however, need not be so thinly sliced. Mrs. Lansaw was not required, as a matter of causation, to establish with absolute precision what degree her depression was caused by the stay violations. As the Bankruptcy Court acknowledged, numerous stressors contributed to the Lansaws’ emotional distress and linking the stay violations to specific manifestations of that distress was likely impossible. It is sufficient that Zokaites’s stay violations were so egregious that a reasonable person could be expected to suffer some emotional harm and that the Lansaws credibly testified that the violations did cause such harm.

Of course, as a matter of damages, plaintiffs like the Lansaws will be more successful when they can link the stay violations to the entirety of their distress. In the present case, for example, the Bankruptcy Court found it necessary to “discount” the emotional damages award so that the Lansaws were not compensated for non-actionable distress. Lansaw II, 2015 WL 224093, at *15. The Bankruptcy Court looked to emotional-distress awards in analogous cases, see, e.g., Snowden v. Check Into Cash of Wash. Inc. (In re Snowden), 769 F.3d 651, 655 (9th Cir. 2014), and awarded the Lansaws a comparably modest $7,500. Zokaites argues that this approach was unduly speculative. But, considering the circumstances of this case and the variety of stressors contributing to the Lansaws’ distress, we cannot say the approach was clearly erroneous. Cf. Spence v. Bd. of Educ. of Christina Sch. Dist., 806 F.2d 1198, 1203 (3d Cir. 1986) (Higginbotham, J., concurring in result) (“[TJhere is ‘no legal yardstick by which to measure accurately reasonable compensation’ for injuries such as emotional distress.” (citation omitted)).

In sum, plaintiffs claiming emotional-distress damages under § 362(k)(l) must demonstrate, as required by the statute, that they suffered “actual” emotional harm caused by the willful stay violation. The evidence necessary to demonstrate such harm will likely vary from case to case. But, at least where the evidence also shows that the stay violations were patently egregious, a plaintiffs credible testimony that the violations did in fact cause emotional distress is sufficient to support an award of damages. Here, we conclude that the Lansaws presented such evidence and that the Bankruptcy Court did not clearly err in crediting the Lansaws’ testimony. Under the circumstances of this case, an award of $7,500 for emotional distress was neither unreasonable nor unduly speculative.

IV.

Zokaites next argues that the Bankruptcy Court erred in awarding the Lansaws punitive damages. As previously noted, § 362(k)(l) allows for punitive damages “in appropriate circumstances.” Although such an award must “comport[J with due process,” CGB Occupational Therapy, 499 F.3d at 188, punitive damages are largely left to the discretion of the bankruptcy court, see Solfanelli v. Corestates Bank N.A., 203 F.3d 197, 203 (3d Cir. 2000).

We conclude, first, that punitive damages were appropriate in the present case. Zokaites correctly states that one of the purposes behind punitive damages is to deter future misconduct. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). He further asserts that, because he has not improperly contacted the Lansaws in the years since the stay violations, “there [is] simply no evidence of future bad conduct to deter.” Appellant’s Br. 49. But, given the nature of Zokaites’s stay violations and his attempts to downplay the violations at trial, we cannot say the Bankruptcy Court erred in determining punitive damages were appropriate under the circumstances. We reach this re-suit even though the Bankruptcy Court considered evidence from the 2006 trial concerning Zokaites’s ability to pay punitive damages. As the Bankruptcy Court noted, other evidence from the 2014 trial {e.g., Zokaites’s multiple residences) indicated he was still financially capable of paying punitive damages.

Turning to the punitive damages award itself, we conclude $40,000 comports with due process. In so doing, we “consider three guideposts: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded ... and the civil penalties authorized or imposed in comparable cases.” CGB Occupational Therapy, 499 F.3d at 189 (quoting State Farm, 538 U.S. at 418, 123 S.Ct. 1513). Zokaites’s repeated stay violations, already discussed at length, were sufficiently reprehensible to support the award. See id. at 190 (discussing the factors considered in determining degree of reprehensibility). Indeed, Judge Agresti carefully reviewed Zokaites’s conduct and concluded that the behavior was the “most egregious” he had ever encountered in his time on the bench. Lansaw II, 2015 WL 224093, at *20. The 4-to-l ratio between the punitive damages award and the actual damages award ($10,100, including $7,500 for emotional distress and $2,600 in attorneys’ fees) is in line with awards previously deemed acceptable by the Supreme Court. See State Farm, 538 U.S. at 425, 123 S.Ct. 1513. And, although $40,000 is higher than other awards examined by the Bankruptcy Court, see, e.g., In re B. Cohen & Sons Caterers, Inc., 108 B.R. 482, 487-88 (E.D. Pa. 1989), we conclude that, under the circumstances of this case, the award is not sufficiently excessive to be unconstitutional.

V.

Because we conclude § 362(k)(l) authorizes recovery for emotional distress, the Lansaws presented sufficient evidence to support such an award, and punitive damages were properly assessed, we will affirm.

      . Zokaites’s appellate brief incorporates the facts stated in the Bankruptcy Court’s memorandum opinion, Lansaw v. Zokaites (In re Lansaw) (“Lansaw II”), Ch. 7 Case No. 06-23936-TPA, Adv. No. 13-2037-TPA, 2015 WL 224093 (Bankr. W.D. Pa. Jan. 14, 2015). Our recitation of the facts borrows liberally from the Bankruptcy Court’s opinion.

      . The Lansaws initially filed for bankruptcy under Chapter 13, but the bankruptcy was later converted to Chapter 7.

      . As Judge Agresti noted, it is unclear why the damages claim went unresolved for so many years. Judge Agresti nonetheless determined that the damages issue remained open after reviewing the December 2006 opinion in conjunction with comments the previous judge made at a hearing in 2009. When appealing Judge Agresti’s decision to the District Court, Zokaites argued that the omission of damages from the December 2006 opinion effectively denied the Lansaws’ request for damages and that res judicata therefore applied. The District Court, however, held that the damages issue was not resolved prior to Judge Agresti’s involvement and that res judicata did not apply. Zokaites does not challenge that determination in the present appeal.

      . On appeal, Zokaites does not concede, but also does not seriously contest, that he willfully violated the automatic stay. Even if we were to assume that this issue, determined in the 2006 decision, is properly before this Court, we would conclude the findings were not clearly erroneous. Zokaites's rationales for resorting to stay violations, including the advice of counsel, are immaterial to whether he violated the stay. See Landsdale Family Rests., Inc. v. Weis Food Serv. (In re Landsdale Family Rests., Inc.), 977 F.2d 826, 829 (3d Cir. 1992) ("It is a willful violation of the automatic stay when a creditor violates the stay with knowledge that the bankruptcy petition has been filed. Willfulness does not require that the creditor intend to violate the automatic stay provision, rather it requires that the acts which violate the stay be intentional. ... [A] creditor’s ‘good faith’ belief that he is not violating the automatic stay provision is not determinative of willfulness.... ” (citation omitted)). But see 11 U.S.C. § 362(k)(2) (providing a "good faith” exception to § 362(k)(l) not applicable here).

      . Section 362(k)(l) was previously codified at § 362(h). Most court decisions discussed in this opinion therefore cite to § 362(h). For our purposes, however, the statute’s language remains the same, and we discuss and quote the prior court decisions as if they were decided under § 362(k)(l).

      . In Fleet Mortgage, the First Circuit upheld an award of emotional-distress damages and explicitly stated that such damages are available under the statute. 196 F.3d at 269-70 (“[W]e note that emotional damages qualify as 'actual damages’ under [§ 362(k)(l) ].”). A later First Circuit decision nevertheless characterized Fleet Mortgage’s statement as dicta. See United States v. Rivera Torres (In re Rivera Torres), 432 F.3d 20, 29 & n.10 (1st Cir. 2005).

      . In Northern Pipeline, the Supreme Court held that the Bankruptcy Act of 1978 unconstitutionally vested Article III judicial powers in "adjunct” bankruptcy courts. 458 U.S. at 86-87, 102 S.Ct. 2858. The Bankruptcy Amendments and Federal Judgeship Act of 1984 was, at least in part, Congress's attempt to resolve these constitutional problems. See Pub. L. No. 98-353, 98 Stat. 333 (1984) (codified as amended in scattered sections of 11 U.S.C. and 28 U.S.C.).

      . The Supreme Court’s decision in FAA v. Cooper, 566 U.S. 284, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012), does not compel a different result. In Cooper, a divided Court concluded that the term "actual damages” in the Privacy Act ("the Act”) did not authorize recovery for emotional distress from the federal government. Id. at 287, 132 S.Ct. 1441. Although the Court recognized that the Act protected non-financial interests, id. at 294-95, 132 S.Ct. 1441, the Court noted indications that Congress refused to authorize emotional-distress damages, see id. at 295-99, 132 S.Ct. 1441. The Court first noted that the Act’s remedial scheme “parallels” specific common law remedial schemes. Id. at 295-96, 132 S.Ct. 1441 (citation omitted). Under those common law schemes, the term "general damages” would have clearly authorized recovery for emotional distress. Id. The Court then noted that a commission created by Congress specifically recommended that the Act allow for general damages, but that Congress never acted on this recommendation. Id. at 297, 132 S.Ct. 1441. Thus, because Congress could have more clearly authorized recovery for emotional-distress damages and because the Act provided for damages against federal agencies, the Court invoked the sovereign immunity canon of statutory construction to limit damages to economic loss. Id. at 299, 132 S.Ct. 1441. The sovereign immunity canon requires that ambiguous statutory language be construed in favor of immunity. Id.

      Unlike Cooper, we are unaware of any legislative history indicating that Congress refused to authorize emotional-distress damages for stay violations. If anything, the legislative history is to the contrary. See supra Parts III.A.3 and 4; see also Dawson, 390 F.3d at 1147-48. Further, the defendant in the present case is neither the federal government nor a state government. We therefore leave for another case the question of whether emotional-distress damages may be recovered under § 362(k)(l) against federal or state governments.

      . Although we do not decide whether financial injury is a necessary predicate, we note that § 362(k)(l) might be the only avenue available for a debtor to recover for emotional harm resulting from a stay violation. The Aiel-lo court implied that those who suffer emotional-distress damages are free to bring state tort claims, see 239 F.3d at 880, but multiple circuits have held that state law claims derived from a stay violation are preempted by federal bankruptcy law, see, e.g., E. Equip. & Serv. Corp. v. Factory Point Nat'l Bank, 236 F.3d 117, 121 (2d Cir. 2001) (per curiam); Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 425-26 (6th Cir. 2000). Thus, if financial injury is later determined to be a prerequisite to emotional-distress damages under § 362(k)(l), those who suffer only emotional injuries might be, contrary to the suggestion in Aiello, "orphans of the law.” See 239 F.3d at 880.

      . Zokaites also argues that the damages awards are property of the bankruptcy estate. After reviewing the record, however, we conclude that this argument has been waived. In his post-trial brief before the Bankruptcy Court, Zokaites argued the awards should be offset against his claims in the main bankruptcy case, but he did not argue that the awards are property of the estate.