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Michael Marcavage v. National Park Service

February 2, 2012

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

The opinion of the court was delivered by: Vanaskie, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1

December 15, 2011

Before: SLOVITER, VANASKIE and GREENBERG,Circuit Judges

OPINION OF THE COURT

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-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 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 ...


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