PHILADELPHIA (CN) – A federal judge tossed a civil rights suit brought by an anti-abortion protester who overturned misdemeanor convictions related to a rally he led outside of the Liberty Bell Center at Independence National Historic Park.
After Michael Marcavage refused a park ranger’s order to move his protest to another part of the park on Oct. 6, 2007, he was arrested and found guilty of violating the terms of a permit and interfering with agency functions.
The 3rd Circuit subsequently overturned that conviction, and Marcavage filed suit against the National Park Service, the Department of the Interior and two park rangers, Alan Saperstein and Ian Crane.
Chief U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania cited various grounds to dismiss the complaint all together on March 9.
In dismissing the claims as to the two federal agencies, Bartle noted that neither had waived immunity as required to pursue an action for damages against the government.
Though Marcavage is entitled to sue federal officials for violating his constitutional rights, Bartle found that there were several reasons to dismiss each of the six claims that Marcavage brought. In reaching those grounds, Bartle first rejected many of the park rangers’ arguments for relief.
He found that the rangers are entitled to qualified immunity from Marcavage’s First and Fourth Amendment claims because the activist was arrested while protesting on a sidewalk that was not a clearly established public forum. The rangers’ actions were furthermore based on the content, not the viewpoint, of Marcavage’s protest, according to the decision.
“Restrictions based on content in a nonpublic forum must be reasonable in light of the purposes served by the forum,” Bartle wrote. “Here, Marcavage was using a bullhorn and his followers were carrying graphic signs depicting mutilated fetuses. In its opinion, the Court of Appeals noted that Saperstein and Crane were concerned that Marcavage was upsetting the visitors waiting in line to see the Liberty Bell Center. These visitors included small children. Thus, the content-based speech restrictions were reasonable in light of the purposes of the forum, which include providing access by persons of all ages to an historic landmark.”
The judge added that the rangers therefore weren’t “plainly incompetent” and did not “knowingly violate the law” – conditions that would have precluded granting them qualified immunity from Marcavage’s suit.
In dismissing Marcavage’s Equal Protection claim, Bartle found that there was a basis for treating an anti-abortion rally differently from other parties at the park, including horse-and-carriage operators, a group raising funds to fight breast cancer and Liberty Bell tourists.
Unlike the carriage operators, Marcavage did not have a permit to operate in the area, Bartle found.
“None of the breast cancer walkers and the visitors to the Liberty Bell remained on the Sixth Street sidewalk for nearly as long a period of time as Marcavage,” the judge continued. “Unlike the other persons, 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.'”
Bartle also dismissed Marcavage’s claim for injunctive and declaratory relief as moot because the National Park Service issued new permit regulations following Marcavage’s arrest. The new permitting scheme has an exemption for groups of fewer than 25 people, and the sidewalk where Marcavage had conducted his protest is now designated as a public area open for First Amendment activity.
Marcavage conceded that his sixth claim, for battery, is barred for failure to exhaust administrative remedies.
Justice Department attorney Kelly Heidrich declined to comment on Judge Bartle’s decision.
Marcavage’s attorney, C. Scott Shields of Media, Pa., did not immediately respond to a request for comment.