609 F.3d 264 (3rd Cir. 2010), 09-3573, United States v. Marcavage

Docket Nº:09-3573.
Citation:609 F.3d 264
Opinion Judge:FISHER, Circuit Judge.
Party Name:UNITED STATES of America v. Michael Anthony MARCAVAGE, Appellant.
Attorney:C. Scott Shields, (Argued), Shields & Hoppe, Media, PA, Counsel for Appellant. Richard W. Goldberg, (Argued), Office of United States Attorney, Philadelphia, PA, Counsel for Appellee. Edward Diver, John J. Grogan, Langer, Grogan & Diver, Philadelphia, PA.
Judge Panel:Before FISHER, HARDIMAN and COWEN, Circuit Judges.
Case Date:June 16, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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609 F.3d 264 (3rd Cir. 2010)



Michael Anthony MARCAVAGE, Appellant.

No. 09-3573.

United States Court of Appeals, Third Circuit.

June 16, 2010

Argued April 13, 2010.

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C. Scott Shields, (Argued), Shields & Hoppe, Media, PA, Counsel for Appellant.

Richard W. Goldberg, (Argued), Office of United States Attorney, Philadelphia, PA, Counsel for Appellee.

Edward Diver, John J. Grogan, Langer, Grogan & Diver, Philadelphia, PA.

Before FISHER, HARDIMAN and COWEN, Circuit Judges.


FISHER, Circuit Judge.

Michael Anthony Marcavage led an anti-abortion demonstration on a sidewalk in front of the Liberty Bell Center in Independence National Historical Park in Philadelphia. When park rangers ordered him to move to a nearby location away from the sidewalk and granted him a verbal permit to demonstrate there, Marcavage refused until he was forcibly removed. He was cited for violating the terms of a permit and interfering with agency function. A Magistrate Judge convicted him of both offenses and rejected his First Amendment defense, a ruling upheld by the District Court. We conclude that Marcavage's permit violation must be vacated because the verbal permit he was issued was invalid and that his interference conviction must be vacated because it was obtained in violation of his First Amendment right to free speech.


Independence National Historical Park (" Park" ), located in downtown Philadelphia, Pennsylvania, is a national park administered by the National Park Service, a division of the Department of the Interior.1 It is home to Independence Hall and the Liberty Bell, among other sites and objects of historical interest. The Liberty Bell is located within a block of the Park bounded by Market Street to the north, Chestnut Street to the south, 6th Street to the west, and 5th Street to the east. The building housing the Liberty Bell, the Liberty Bell Center, is located in the southwest corner of the block, abutting 6th and Chestnut Streets. The 6th Street sidewalk, like those running along 5th, Market and Chestnut Streets, is partially made of Belgian block on the portion directly adjacent to the street, while its remaining surface area is covered with slate. The area of the 6th Street sidewalk bordering the Liberty Bell Center is partially lined with chained metal bollards along its curb. Market and Chestnut Streets are also rimmed with bollards.

Demonstrations of varying size take place in the Park each year. In 2007, for

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instance, 175 permits were issued for demonstrations collectively involving more than 100,000 people. The messages of the groups leading these demonstrations run the gamut; they include immigration policy, gay rights, and Tibet's political status, to name just a few examples. The Code of Federal Regulations outlines a process for obtaining a permit to demonstrate in national parks, including Independence National Historical Park. See 36 C.F.R. § 2.51(a). A prospective demonstrator must submit to the Park superintendent an application containing basic information about the nature of the proposed demonstration, id. § 2.51(b), and the regulations require the superintendent to issue the permit while making exceptions for events that, among other things, threaten public health or safety or impair the Park's " atmosphere of peace and tranquility," id. § 2.51(c).

On October 6, 2007, Marcavage headed an approximately twenty-person-strong anti-abortion demonstration along the sidewalks surrounding the Park. His group had neither applied for nor obtained a permit to demonstrate in the Park. Construction around the block of the Park in which the Liberty Bell Center is located left the entrance and exit opening onto the 6th Street sidewalk as the only means of accessing the Center on the day of Marcavage's demonstration. Marcavage and some other members of his group positioned themselves on the sidewalk's Belgian block outside the 6th Street entrance to the Liberty Bell Center, while some of their co-demonstrators were stationed at different spots along that sidewalk and nearby sidewalks. Several members of the group displayed signs depicting aborted fetuses and other anti-abortion-related images. Although Marcavage was not holding a sign, he both spoke with and preached to passers-by and people waiting in line to enter the Liberty Bell Center, for a while with the aid of a bullhorn.

At approximately 11:45 a.m., Alan Saperstein, a National Park Service ranger employed at the Park, approached Marcavage, informed him that he could not demonstrate directly outside the Center's entrance and exit, and told him to move to an area near the Independence Visitor Center on Market Street and not to use his bullhorn in front of the Liberty Bell Center. Marcavage and his group stayed put. At around 12:10 p.m., Saperstein again told Marcavage to move his demonstration to Market Street and to stop using the bullhorn in front of the Liberty Bell Center. Marcavage again refused to comply. At approximately 12:40 p.m., Saperstein approached Marcavage and put him in contact by cellular telephone with Ian Crane, Saperstein's supervisor and the Park's chief ranger. Crane, who had dealt with Marcavage during past demonstrations in the Park, asked Marcavage to obey Saperstein's order and encouraged him to move to a different location. Marcavage refused and stayed on the 6th Street sidewalk. At approximately 1:10 p.m., Saperstein again approached Marcavage and explained that he needed a permit to hold his demonstration. Saperstein then granted Marcavage a verbal permit, authorizing the demonstration to take place in a grassy area on the opposite side of the Liberty Bell Center-an area the Park had apparently designated for demonstrations-and Marcavage to use his bullhorn at that location. Marcavage did not relocate. At 1:46 p.m., Saperstein again ordered Marcavage to move to that location and Marcavage again refused. At approximately 2:05 p.m., Saperstein, by now accompanied by a few other rangers, again tried to speak with Marcavage and ordered him to move, but Marcavage again refused to comply. Saperstein and a fellow ranger then physically restrained Marcavage by holding his

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hands behind his back and marched him off the 6th Street sidewalk and through the gate leading to the Liberty Bell Center. There, Marcavage was cited for violating the terms of a permit under 36 C.F.R. § 1.6(g)(2). Several months later, Marcavage was mailed a second citation for interfering with agency function in violation of 36 C.F.R. § 2.32. Both citations are misdemeanors.

Following a two-day bench trial, a Magistrate Judge in the Eastern District of Pennsylvania found Marcavage guilty of both offenses, rejected his First Amendment defense, and sentenced him to twelve months' probation. The District Court affirmed. Marcavage has timely appealed his conviction, raising both sufficiency-of-the-evidence and First Amendment challenges.2


In determining whether a defendant is entitled to a judgment of acquittal, " [w]e must view the evidence in the light most favorable to the ... verdict and presume that the [finder of fact] properly evaluated credibility of the witnesses, found the facts, and drew rational inferences." United States v. Wasserson, 418 F.3d 225, 237 (3d Cir.2005) (quotation marks and citation omitted). " The verdict ... must be sustained if there is substantial evidence, taking the view most favorable to the [g]overnment, to support it." Id. (quotation marks and citation omitted). Legal determinations are given plenary review, United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir.2003), while factual findings must be upheld unless clearly erroneous, United States v. Helbling, 209 F.3d 226, 237 (3d Cir.2000).

We exercise plenary review over the legal question whether a defendant's First Amendment rights have been violated. See United States v. Kosma, 951 F.2d 549, 553 (3d Cir.1991). While we review a district court's factual findings " with substantial deference, reversing only for clear error," United States v. Antar, 38 F.3d 1348, 1357 (3d Cir.1994) (citation omitted), in the First Amendment context we have an " obligation independently to examine the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of free expression," United States v. Scarfo, 263 F.3d 80, 91 (3d Cir.2001) (internal quotation marks and citations omitted).


A. Sufficiency of the Evidence

Marcavage was convicted of two crimes. One of those crimes was violating the terms of the verbal permit Ranger Saperstein granted him. The applicable regulation, 36 C.F.R. § 1.6(g)(2), prohibits " [v]iolating a term or condition of a permit issued pursuant to this section." Throughout these proceedings, the parties have disputed the validity of the verbal permit issued to Marcavage, Marcavage urging that a permit must be in writing and the government insisting that there is no such requirement. Neither side has referenced any legal authority to support its position. Both the Magistrate Judge and the District Court agreed with the government, reasoning that nothing in the governing regulations affirmatively imposes a writing requirement.

At oral argument, we referred the government to 36 C.F.R. § 1.4(a), which neither party had cited in either the District

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Court or this Court. Section 1.4(a) defines a " permit," for purposes of § 1.6(g)(2) and related provisions, as " a written authorization to engage in uses or activities that are otherwise...

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