Marcavage v. Nat'l Park Serv.

• Decision Date: 02 February 2012
• Docket Number: No. 11–2246.,11–2246.
• Parties: Michael MARCAVAGE, Appellant v. NATIONAL PARK SERVICE; Agency of the Department of the Interior; Ranger Saperstein; Chief Ranger Crane.
• Court: U.S. Court of Appeals — Third Circuit

666 F.3d 856

Michael MARCAVAGE, Appellant

v.NATIONAL PARK SERVICE; Agency of the Department of the Interior; Ranger Saperstein; Chief Ranger Crane.

No. 11–2246.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1 Dec. 15, 2011.Filed: Feb. 2, 2012.

Leonard G. Brown, III, Esq., Clymer, Musser, Brown & Conrad, P.C., Lancaster, PA, for Appellant.

Tony West, Assistant Attorney General (Did not enter an appearance), Zane David Memeger, United States Attorney (Did not enter an appearance), Barbara L. Herwig, Esq., Daniel J. Lenerz, Esq., United States Department of Justice, Washington, DC, for Appellees.

Before: SLOVITER, VANASKIE and GREENBERG, Circuit Judges.

OPINION OF THE COURT

VANASKIE, Circuit Judge.

Michael Marcavage brought an action under 42 U.S.C. § 1983 against the National Park Service, the United States Department of the Interior, and Park Service Rangers Alan Saperstein and Ian Crane, alleging violations of his rights under the First Amendment, the Fourth Amendment, and the Equal Protection Clause. The District Court granted the defendants' motion to dismiss, and we will affirm.

I.

On October 6, 2007, Marcavage, using a bullhorn, led an anti-abortion demonstration on the sidewalk of Sixth Street at the entrance to the Liberty Bell Center at Independence National Historical Park in Philadelphia. Marcavage and his group shared the sidewalk with tourists, horse and carriage operators, and participants in a walk for the Susan G. Komen Foundation, an organization dedicated to eliminating breast cancer.

At approximately 11:45 a.m., Ranger Saperstein informed Marcavage that he would have to vacate the sidewalk because it was not designated as a First Amendment area under Park regulations. Saperstein also expressed concern that Marcavage's group was potentially interfering with traffic flow on the sidewalk and upsetting visitors to the Park. Saperstein issued Marcavage an oral permit to continue his rally on the opposite side of the Liberty Bell Center, which was open for First Amendment activity under Park regulations. Chief Ranger Crane, Saperstein's supervisor, also spoke with Marcavage via telephone and similarly encouraged Marcavage to move to another area of the Park. Marcavage refused this and other requests to leave the sidewalk.

Over two hours later, at approximately 2:05 p.m., Saperstein, while holding Marcavage's hands behind his back, escorted him off the Sixth Street sidewalk. Saperstein then issued Marcavage a citation for “[v]iolating a term or condition of a permit” under 36 C.F.R. § 1.6(g)(2). Later, another citation for “[i]nterfering with agency functions” under 36 C.F.R. § 2.32 was mailed to Marcavage. A United States Magistrate Judge subsequently convicted Marcavage of both misdemeanors. United States v. Marcavage, No. 08–0511, 2009 WL 2170099 (E.D.Pa. June 17, 2009) (“ Marcavage I ”). The convictions were affirmed by a United States District Judge. United States v. Marcavage, No. 08–mj0511, 2009 WL 2170094 (E.D.Pa. July 16, 2009) (“ Marcavage II ”). On further appeal, however, we reversed. United States v. Marcavage, 609 F.3d 264 (3d Cir.2010) (“ Marcavage III ”). We held that there was insufficient evidence to support Marcavage's conviction for “violating a term or condition of a permit,” and vacated his conviction for “interfering with agency functions” on the ground that it was invalid under the First Amendment.

While Marcavage's appeal from his convictions was still pending, he filed this action. The District Court stayed proceedings pending the outcome of the criminal appeal. Once we decided the appeal, Marcavage filed an amended complaint. Marcavage alleged that his arrest violated the First Amendment, the Fourth Amendment, and the Equal Protection Clause of the Fourteenth Amendment as applied to federal officials through the Fifth Amendment. He sought compensatory and punitive damages along with declaratory and injunctive relief.

Defendants moved to dismiss Marcavage's action under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the District Court granted the motion. Marcavage v. Nat'l Park Serv., 777 F.Supp.2d 858 (E.D.Pa.2011). The District Court dismissed the damages claims against the National Park Service and the Department of the Interior on the ground that an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) cannot be pursued against the federal government and its agencies absent a waiver, and no waiver occurred here. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The District Court then found that Saperstein and Crane were entitled to qualified immunity from both the First Amendment and the Fourth Amendment claims because Marcavage's First Amendment rights were not clearly established at the time of his arrest, and Marcavage could not show that the rangers acted without probable cause when arresting him. The District Court also dismissed Marcavage's Equal Protection claim because he was not similarly situated to the other groups in front of the entrance to the Liberty Bell Center who were allowed to stay on the Sixth Street sidewalk. Finally, the District Court dismissed as moot Marcavage's claims for injunctive and declaratory relief, as the National Park Service has revised its regulations to designate the Sixth Street sidewalk as a public area open for First Amendment activity, and issued new regulations exempting groups of under twenty-five individuals from permit requirements. See Independence National Historic Park, Superintendent's Compendium § III.B (2010); 36 C.F.R. § 2.51(b)(1).

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have appellate jurisdiction under 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss is plenary. Anspach ex rel. Anspach v. City of Phila., Dep't of Pub. Health, 503 F.3d 256, 260 (3d Cir.2007). When reviewing a Rule 12(b)(6) dismissal, we accept as true all well-pled factual allegations in the complaint, and view them in the light most favorable to the plaintiff. Id.

A.

The doctrine of qualified immunity involves a two-part test. See Scott v. Harris, 550 U.S. 372, 377, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The defendants are entitled to qualified immunity unless the plaintiff demonstrates that both prongs have been satisfied. Ashcroft v. al-Kidd, –––U.S. ––––, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). First, there must be “a violation of a constitutional right.” Scott, 550 U.S. at 377, 127 S.Ct. 1769. Second, that right must be “clearly established ... in light of the specific context of the case.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Marcavage argues that his “rights to engage in fundamental speech activities on a public sidewalk were clearly established.” (Appellant's Br. 18.) We disagree with this contention.

As the Supreme Court has noted, “[i]f judges ... disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Both a United States Magistrate Judge and a United States District Judge previously determined that the Sixth Street sidewalk was a nonpublic forum—an area that is not used by tradition or designation for public expression and that consequently carries a less stringent standard of review when assessing government justifications for limiting speech. See Marcavage I, 2009 WL 2170099, at *3; Marcavage II, 2009 WL 2170094, at *8. This led both judges to find Marcavage's arrest constitutionally permissible. While we ultimately held otherwise, the fact that two judges found no First Amendment violation indicates that Marcavage's constitutional right to demonstrate on the Sixth Street sidewalk was not clearly established.

As we noted in Marcavage III, “[t]he question whether a particular sidewalk is a public or a nonpublic forum is highly fact-specific and no one factor is dispositive.” 609 F.3d at 275. It was reasonable for the rangers to believe that their conduct comported with the First Amendment when they escorted Marcavage off the Sixth Street sidewalk and issued him a citation. They should not be stripped of qualified immunity simply because this belief turned out to be mistaken.

Marcavage argues that “first amendment freedoms will be seriously jeopardized” should “mistaken judicial conclusions ... be[ ] fashioned into tools to shield officers from liability for content-based discrimination.” (Appellant's Reply Br. 3.) We disagree. Marcavage's First Amendment rights were already vindicated when we vacated his previous conviction. It is one thing to decide that a conviction violates the First Amendment. It is quite another to subject the arresting officers to damages for making a reasonable mistake. Accordingly, Saperstein and Crane are entitled to qualified immunity from Marcavage's First Amendment claim.

B.

Marcavage next argues that the defendants are not entitled to qualified immunity on his Fourth Amendment claim because “no probable cause existed to arrest” him. (Appellant's Br. 29.) Although we ultimately vacated Marcavage's conviction for “interfering with agency functions” on First Amendment grounds, we noted in Marcavage III “that the government presented sufficient evidence for the Magistrate Judge to have reasonably found that Marcavage ... committed ‘interference.’ ” 609 F.3d at 272. A criminal conviction requires proof of guilt beyond a reasonable doubt, a much higher standard than that required for a finding of probable cause. See Orsatti v. N.J. State Police, 71 F.3d 480, 482–83 (3d Cir.1995). If there was sufficient evidence to support Marcavage's conviction, by...