Fleck v. Trs. of the Univ. of Pa.

• Decision Date: 05 February 2014
• Docket Number: Civil Action No. 12–3765.
• Parties: Kenneth FLECK et al. v. TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

995 F.Supp.2d 390

Kenneth FLECK et al.

v.TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA et al.

Civil Action No. 12–3765.

United States District Court, E.D. Pennsylvania.

Feb. 5, 2014.

Amy Sunnergren, F. Michael Daily, Jr., F. Michael Daily, Jr. LLC, Westmont, NJ, for Kenneth Fleck et al.

Joe H. Tucker, Jr., Venycles Amanda Witts, Yvonne Barnes Montgomery, Tucker Law Group, Philadelphia, PA, for Trustees of the University of Pennsylvania et al.

MEMORANDUM

DALZELL, District Judge.

Preachers Kenneth Fleck (“Fleck”), Michael Marcavage (“Marcavage”) and three others bring this civil rights action pursuant to 42 U.S.C. § 1983 against certain police officers of the University of Pennsylvania and Philadelphia Police Departments.¹ Plaintiffs' claims arise from events of July 3 and August 22, 2010 ² after they began preaching outside a mosquein West Philadelphia near the University of Pennsylvania campus.

Specifically, plaintiffs assert violations of their First Amendment free speech right, their Fourth Amendment right against unreasonable search and seizure, and the Due Process Clause. Plaintiffs Fleck and Marcavage also claim state-law violations for false arrest, false imprisonment and malicious prosecution against the named officers and both police departments. Finally, plaintiffs' undefined § 1983 claim against the City of Philadelphia may be construed as a claim that the Philadelphia police officers' alleged constitutional violations were the result of a municipal policy, custom or practice pursuant to Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).³

Plaintiffs seek compensatory and punitive damages. They also seek to enjoin defendants from suppressing religious speech in public forums.

Before us are unopposed motions for summary judgment from the Trustees of the University of Pennsylvania (“Penn”) on behalf of the University and named Penn police officers, and from the City of Philadelphia (the “City”), for itself and the sole named Philadelphia police officer.

We draw our recitation of facts principally from the deposition transcripts the defendants provided, pursuant to Rule 56(c)(3), and state where the facts are undisputed.

I. Factual and Procedural Background

Plaintiffs are five Christian evangelists affiliated with Repent America, an organization Marcavage led. Penn MSJ, Ex. A; see also Phila. MSJ, Ex. B at 13:1. Marcavage and his affiliates engage in “open-air preaching”, under often contentious circumstances, that have led to prior litigation in this District. See, e.g. Marcavage v. City of Philadelphia, 778 F.Supp.2d 556 (E.D.Pa.2011) (Robreno, J.), aff'd 481 Fed.Appx. 742 (3d Cir.2012); Marcavage v. National Park Service, 777 F.Supp.2d 858 (E.D.Pa.2011) (Bartle, C.J.), aff'd 666 F.3d 856 (3d Cir.2012); United States v. Marcavage, 2009 WL 2170094 (E.D.Pa. Jul. 16, 2009) (Davis, J.), vacated by 609 F.3d 264 (3d Cir.2010); Startzell v. City of Philadelphia, 2007 WL 172400 (E.D.Pa. Jan. 18, 2007) (Stengel, J.), aff'd 533 F.3d 183 (3d Cir.2008). ⁴ But the Marcavage group has also preached in this area without incident. See Penn MSJ, Ex. B at 51:15–19.

A. The Events of July 3, 2010

On the evening of July 3, 2010, Fleck, Marcavage and Michael Stockwell drove past the Masjid Al Jamia Mosque at 4228 Walnut Street in Philadelphia. Phila. MSJ, Ex. C at 48:11–14, and Penn MSJ, Ex. C at 1. Knowing the hour coincided with evening prayers at the mosque, the plaintiffs decided to park the car and preach the gospel in front of the mosque. Penn MSJ SOF ¶¶ 5–6; Phila. MSJ, Ex. C at 50:12–14, 53:5–6. That night was family night at the mosque, and there were between sixty and seventy people, including children, in attendance there. Penn MSJ SOF ¶ 7 and Ex. G at 1. The area around the mosque is primarily residential. Phila. MSJ, Ex. C at 61:5–12. Because they wanted to be effectively heard, they stationed themselves immediately in front of the mosque door, where congregants were gathering, and began singing a hymn. Id. at 63:9–11, 78:1–3 and 101:13–15; Penn MSJ, Ex. B at 72:22–24 and Ex. E at 32:12. Thereafter, they took turns preaching. Phila. MSJ, Ex. C at 64:20–21.

At about 9:00 p.m. a security guard employed by AlliedBarton was patrolling on her bike near the northwest corner of 43rd and Walnut Streets, across the street from the mosque, when she observed plaintiffs shouting in a hostile manner toward the people gathered in the mosque doorway. Penn MSJ, Ex. F at 7:14, 8:10–12, 9:1–10, 12:12–20. Another AlliedBarton security guard, Christopher Cochrane, arrived moments later and also observed the plaintiffs standing in front of the mosque shouting that Islam is a hate religion. Id., Ex. F at 15:8–22 and Ex. H at 15:12–24. Shortly thereafter, several men left the mosque and one of them began speaking to one of the plaintiffs, at first in a low tone, then progressively louder until it escalated into a loud confrontation. Id., Ex. F at 13:23–14:2. Several men, women and children also came out of the mosque and gathered around the plaintiffs. Id. at 14:11–13; see also Penn MSJ, Ex. G at 1. Cochrane approached the plaintiffs and asked them to lower their voices or he would have to call the Penn police, to which plaintiffs responded that they did not care if he called the police because they had a free-speech right. Id., Ex. H at 17:22–18:3 and 18:9–10; see also id., Ex. I. Cochrane raised his voice to be heard because plaintiffs were shouting as loudly at him as they were to the congregants. Id., Ex. H at 26:15–24. It is undisputed that plaintiffs did not lower their voices and Cochrane summoned Penn police officers to assist. Id., Ex. H at 18:14–16.

Penn police officers Gary Cooper and Nicole Michel drove up in a patrol car and observed a crowd forming and the plaintiffs exhorting congregants. Penn MSJ SOF ¶ 24, Ex. I at 37:18–23, 38:15–18 and Ex. J at 35:13–17. It is undisputed that the plaintiffs stood by the mosque's doorway, impeding traffic. Id., Ex. J at 34:18–19; Phila. MSJ, Ex. B at 103:1–3. A crowd gathered outside the mosque doorway and another crowd formed across the street, where people were beginning to spill into the street. Penn MSJ, Ex. I at 40:4–7, 39:17–20 and Ex. J at 37:10–12. Some congregants threatened the plaintiffs. Phila. MSJ, Ex. C at 93:17.

Emerging from the patrol car, Officer Cooper instructed plaintiffs to move down the street because the ruckus caused several crowds to gather. Penn MSJ, Ex. J at 34:19–20 and 37:11–16. Officer Cooper told the plaintiffs that they could continue their activity provided they moved down the street, did not block the entrance to the mosque and did not cause a disturbance. Id. at 40:14–20. The plaintiffs ignored the officer's instruction. Id. at 37:11–16 and 40:14–23.

Officer Michel spoke to Fleck, who was exhorting the congregants from a position that blocked the mosque entrance, and instructed him that he needed to move up the street. Penn MSJ SOF ¶¶ 32–34; see also Ex. I and 41:23–44:11 and 44:7–14. Fleck, disregarding the officer's instruction, continued to yell in front of the mosque door. Id., Ex. I at 45: 5–8. Officer Michel turned her attention to Marcavage, also preaching loudly to the congregants, and asked him to lower his voice, which he refused to do. Id. at 45:10–46:5. Several of the small children present began to cry. Id. at 48:1–7.

In the course of this dialogue, Marcavage, who had been filming the preaching, began filming Officer Michel at close range with a handheld video camera that hung around his neck. Id. at 52:24–25 and 54:25–55:20; Phila. MSJ, Ex. B 103:4–105:12. When Marcavage held the camera less than a foot from the officer's face, she told him, “You need to put that down.” Penn MSJ, Ex. I at 55:2–17. It is undisputed that the officer instructed Marcavage several times to turn off the camera, and each time he refused. Id. at 55:19–20; Phila. MSJ, Ex. B at 110:18–111:1. Officer Michel felt that Marcavage's holding the camera so close to her face posed a threat to her, Penn MSJ Ex. J at 52:4–6 and 24–26, and she sought to grab the camera to get it away from her face. Id. at 55:22–23. Marcavage and the officer agree that Marcavage called 911 on his cell phone (while still holding the camera)—a conversation that ended when Officer Michel placed him in handcuffs. Id. at 56:1–2 and 21–22; Phila. MSJ, Ex. B at 120. The camera was at some point taken from him and shut off. Id. at 110:18 to 111:1 and 114:1–12. Officer Michel testified that Marcavage had his camera “in [her] face” and was arrested when he refused to move it as she asked. Penn MSJ, Ex. I at 52:4–11 and 54:24 to 58:14.

Marcavage and Fleck were arrested for disorderly conduct and obstruction of a public highway, Penn MSJ SOF ¶ 50 and Ex. L; see also Compl. ¶ 43, and were released an hour and a half later. Phila. MSJ, Ex. C at 123:13–14. The video camera was returned to them upon their release. Id., Ex. B at 120:9–11. At some later point, the plaintiffs discovered that their video footage wasn't kept. Id., at 119:20 to 121:14.

A third Penn officer, Phoukhong Thammavong, also observed the scene in front of the mosque. Id., Ex. K at 21:19, 22:6–8 and 23:24. He asked Michael Stockwell, one of the plaintiffs, to move down the street, and walked him down to the corner. Id. at 23:3–6. Neither had any further interaction with the plaintiffs. Id. at 24:23–25.

In the course of the plaintiffs' activities, the officers made no remarks about the content of the plaintiffs' speech, displayed no animosity toward these plaintiffs, and made no pro-Islamic or anti-Christian remarks. See Ex. E at 22:15–24:18; Phila. MSJ, Ex. C at 89:22–90:6, 93: 12–14 and 102:19–22.

After a proceeding in the Community Court of the Philadelphia Municipal Court on November 20, 2010, Marcavage and Fleck were found not guilty of disorderly conduct. The obstruction charge was earlier withdrawn. Compl. at ¶¶ 45, 46, 49.

B. The Events of August 22, 2010

On August 22, 2010,...