Marcavage v. National Park Service

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2246

____________

MICHAEL MARCAVAGE, Appellant

v.

NATIONAL PARK SERVICE;

AGENCY OF THE DEPARTMENT OF THE INTERIOR;

RANGER SAPERSTEIN;

CHIEF RANGER CRANE

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-04594)

District Judge: Honorable Harvey Bartle, III

___________

Submitted Under Third Circuit LAR 34.1

December 15, 2011

Before: SLOVITER, VANASKIE and GREENBERG,

Circuit Judges

(Filed: February 2, 2012)

Leonard G. Brown, III, Esq.

Clymer, Musser, Brown & Conrad, P. C.

408 W. Chestnut Street

Lancaster, PA 17603

Counsel for Appellant

Tony West, Assistant Attorney General

(Did not enter an appearance)

Zane David Memger, United States Attorney

(Did not enter an appearance)

Barbara L. Herwig, Esq.

Daniel J. Lenerz, Esq.

United States Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellees

___________

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,

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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-mj-

0511, 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

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the ground that an action pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(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

(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 (2007). The

defendants are entitled to qualified immunity unless the

plaintiff demonstrates that both prongs have been satisfied.

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting

Harlow v. Fitzgerald, 475 U.S. 800, 818 (1982)). First, there

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must be “a violation of a constitutional right.” Scott, 550 U.S.

at 377. 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 (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 (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

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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

definition there must also have been probable cause to arrest

him.

The fact that Marcavage’s conviction was later

reversed is not determinative. As noted above, to strip

Saperstein and Crane of qualified immunity requires the

violation of a clearly established constitutional right.

Marcavage’s right to demonstrate on the Sixth Street

sidewalk was far from clear at the time of his arrest. As we

observed in Gilles v. Davis, “it does not necessarily follow

that the arresting officers are civilly liable for [] arrest[s]”

carried out under regulations that are ultimately held to be

unconstitutional. 427 F.3d 197, 207 (3d Cir. 2005). As the

Supreme Court stated in Hunter v. Bryant, “[t]he qualified

immunity standard ‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or

those who knowingly violate the law.’” 502 U.S. 224, 229

(1991) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)).

Until we reversed the Magistrate Judge and District Judge in

Marcavage III, Saperstein and Crane had made no mistake.

They had better than probable cause – they had evidence

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sufficient for a conviction. As in the First Amendment

context, qualified immunity bars Marcavage’s Fourth

Amendment damages claim.

C.

Marcavage also claims that the District Court erred in

its equal protection analysis and failed to “evaluat[e]

Marcavage’s claim under a ‘class of one’ theory.”

(Appellant’s Br. 33.) In order to successfully bring about an

equal protection claim based on the “class of one” doctrine,

the plaintiff must allege “that she has been intentionally

treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.” Vill.

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Marcavage was not similarly situated to the tourists,

the horse and carriage operators, and the walk participants

who were also on the Sixth Street sidewalk. Unlike all three

groups, Marcavage used a bullhorn and remained standing on

the sidewalk for over two hours. Marcavage was also present

at the Park without a permit, unlike the horse and carriage

operators, who were required to obtain one in order to

conduct business in the Park. See 36 C.F.R. § 5.3.

Marcavage contends these differences are immaterial. We

disagree. We held in Startzell v. City of Philadelphia, for

example, that volunteers in a government-permitted event

“were not similarly situated to . . . attendees with no

relationship to the organizers whatsoever.” 533 F.3d 183,

203 (3d Cir. 2008). Similarly, we held in Marcavage III that

“ensuring traffic flow and/or public safety, and regulating

noise” are “undoubtedly . . . legitimate government

interest[s].” 609 F.3d at 287.

Marcavage observes that “[s]ome of the individuals

gathered [on the Sixth Street sidewalk] were of a different

race than Marcavage. Some were wearing differently colored

or styled clothing. Some likely belonged to a different

religious group or had no religious affiliation. Those facts do

not make Marcavage dissimilar.” (Appellant’s Reply Br. 8-

9.) We agree, and this would be a different case if Marcavage

were escorted from the Sixth Street sidewalk because of any

of those differences. But he was not. Marcavage was

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escorted from the sidewalk because he was leading a

demonstration without a permit, creating excessive noise, and

potentially interfering with traffic flow. He was not “in all

relevant respects alike” the others who shared the Sixth Street

sidewalk. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

Accordingly, his claim under the Equal Protection Clause

fails.

D.

Finally, Marcavage argues that the District Court erred

in dismissing for mootness his claims for declaratory and

injunctive relief. He contends that the new regulations issued

by the National Park Service that would specifically allow for

permit-less demonstrations of under twenty-five individuals

on the Sixth Street sidewalk are a “voluntary cessation of a

challenged policy” that “does not deprive a federal court of its

power to determine the legality of the practice.” (Appellant’s

Br. 40.)

The standard used to analyze mootness based on

voluntary conduct was set forth by the Supreme Court in

Friends of the Earth, Inc. v. Laidlaw Environmental Services,

Inc., which provides that “[a] case might become moot if

subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” 528 U.S. 167, 189 (2000) (quoting United States v.

Concentrated Phosphate Exp. Ass’n., 393 U.S. 199, 203

(1968)).

Marcavage looks to Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701 (2007),

to support his argument. He also contends that the facts of

“[t]his case bears close resemblance to” United States v.

Government of the Virgin Islands, 363 F.3d 276 (3d Cir.

2004) (Appellant’s Br. 41.) We disagree. In Parents

Involved, the Supreme Court held that a Seattle school district

had not met the standard for mootness set forth in Friends of

the Earth because the district had only stopped applying the

challenged policy “pending the outcome of this litigation,”

and “nowhere suggests that if this litigation is resolved in its

favor it will not resume” the challenged policy. 551 U.S. at

719. Here, by way of contrast, the Park Service is not

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contesting the determination in Marcavage III that the Sixth

Street sidewalk is a public forum.

In Government of the Virgin Islands, we found the

case not moot because “[t]he timing of the contract

termination – just five days after the United States moved to

invalidate it, and just two days before the District Court’s

hearing on the motion – strongly suggests that the impending

litigation was the cause of the termination,” and, given the

continued defense of the contract in question, there was no

assurance that the Government of the Virgin Islands would

not enter into a contract similar to the challenged contract in

the future. 363 F.3d at 285. In the case before us, in contrast,

the Park Service did not revise its position on demonstrations

on the Sixth Street sidewalk in reaction to this civil rights

action. It did so only after a definitive determination in

Marcavage III that the area was indeed a public forum.

Moreover, there is no indication that the regulation allowing

permit-less demonstrations involving twenty-five persons or

fewer was adopted to avoid an adverse judgment in this case

and will be abandoned once this case becomes final.

As we noted in Bridge v. United States Parole

Commission, “[g]overnment officials are presumed to act in

good faith.” 981 F.2d 97, 106 (3d Cir. 1992). Marcavage has

been unable to rebut this presumption as he has not made any

showing of bad faith on the part of the Park Service. This

presumption and the changes to the Park Service’s regulations

concerning protests on the Sixth Street sidewalk make it

unreasonable to expect that future constitutional violations

will recur. The Supreme Court noted in Summers v. Earth

Island Institute that a plaintiff seeking an injunction “must

show that he is under threat of suffering ‘injury in fact’ that is

concrete and particularized; the threat must be actual and

imminent, not conjectural or hypothetical.” 555 U.S. 488,

493 (2009). Marcavage is unable to make such a showing,

and his claims for declaratory and injunctive relief were

therefore properly dismissed as moot. 1

1

Even if constitutional mootness does not pertain here,

dismissal of the requests for injunctive and declaratory relief

on ground of prudential mootness was warranted. “The

discretionary power to withhold injunctive and declaratory

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III.

For the foregoing reasons, we will affirm the District

Court’s judgment. 2

relief for prudential reasons, even in a case not

constitutionally moot, is well established.” Blanciak v.

Allegheny Ludlum Corp., 77 F.3d 690, 700 (3d Cir. 1996)

(quoting S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 1987)).

The key inquiry in a prudential mootness analysis is

“‘whether changes in circumstances that prevailed at the

beginning of the litigation have forestalled any occasion for

meaningful relief.’” Int'l Bhd. of Boilermakers v. Kelly, 815

F.2d 912, 915 (3d Cir. 1987) (quoting Jersey Cent. Power &

Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985)). In

this case, the actions taken by the Park Service in recognizing

the Sixth Street sidewalk as a public forum and eliminating

the need for a permit for groups of less than twenty-five

persons forecloses meaningful injunctive or declaratory relief

with respect to the October, 2007 incident.

2

Appellees have moved to strike from the Appendix

filed by Marcavage exhibits and transcript from Marcavage’s

criminal trial (App. 230a-616a), two DVDs, apparently

introduced by Marcavage at his criminal trial, (App. 617a-

618a), and the docket sheet from his criminal proceedings.

(App. 610a-624a.) It is undisputed that these materials were

not presented to the District Court as part of the instant case.

Because the materials could have been, but were not,

presented to the District Court, and there are no exceptional

circumstances warranting our consideration of them on this

appeal, Appellees’ motion will be granted. See Acumed LLC

v. Advanced Surgical Servs., 561 F.3d 199, 226-227 (3d Cir.

2009).

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