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Plaintiff, :


v. :

: NO. 04-4741


Defendants. :


Presently before this Court are Plaintiff’s Amended Motion for Partial Summary Judgment (Docs. 59 & 60), Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiff’s Motion (Docs. 64 & 65), and Plaintiff’s Response in Opposition to Defendants’ Cross-Motion (Doc.

67). For the reasons set forth below, the Court will deny Plaintiff’s Motion for Summary Judgment and grant Defendants’ Motion for Summary Judgment in part.


From the evidence of record, the pertinent facts are as follows. Plaintiff, Michael Anthony Marcavage (“Marcavage”), a devout Christian, believes that it is his “Biblical mandate” to educate people about “the sinful nature of our country.” Such sins, he believes, include sexually oriented businesses, homosexuality and abortion. Marcavage regularly engages in activities such as open-air preaching, distributing of Gospel literature, sidewalk ministering, and the displaying of signs as part of his evangelical ministry. Marcavage’s religious activity has led to a series of encounters with certain City of Philadelphia police officers; the encounters included two arrests. Defendants, Warren Edwards, William Fisher, James Tiano, and Daniel Kelly (the “Individual Defendants”), are four of the City of Philadelphia police officers that have confronted Marcavage at various times during his evangelical activity. It is those confrontations that have given rise to this action.

The first encounter took place on Halloween Night, October 31, 2002, at approximately 11:30 p.m., when Marcavage was on the corner of Fourth and South Streets in Philadelphia engaging in “open-air preaching” with a megaphone. At that time, a police officer approached Marcavage about his activity, and Marcavage then moved to the corner of Fifth and South Streets. Shortly thereafter, Marcavage was approached by two other officers, who instructed him that his use of sound amplification equipment was not permitted. Marcavage moved back to Fourth Street, where he resumed using the megaphone. After a warning, one of the officers on the scene arrested Marcavage.

Marcavage also claims that the arresting officers slammed him against a window during the arrest.

When the case went to trial, Marcavage was found guilty in Municipal Court of disorderly conduct, but the charges were dismissed on appeal to the Philadelphia Court of Common Pleas.

On March 21, 2003, Marcavage returned to South Street to preach but left, fearing arrest, after a confrontation with two police officers who accused him of disobeying a noise ordinance and obstructing a highway. On May 29, 2003, Marcavage returned to preach in front of a “sexuallyoriented business” named “Condom Kingdom.” Shortly after Marcavage’s arrival, Defendant Edwards approached him and told him that he would have to stop using the megaphone, or he would be arrested. Edwards also told Marcavage that he could continue preaching, but not while standing in one place. Marcavage refused to move along, so Sergeant Edwards arrested him for obstruction of a highway. The charges against Marcavage were dismissed when Sergeant Edwards did not appear at trial. The fourth incident occurred in front of Woody’s Bar on August 15, 2003.

According to Marcavage, Defendant Kelly told him to leave. Marcavage did not leave the scene, was not arrested and was able to continue his open-air preaching.

Marcavage’s activity was not limited to Philadelphia’s South Street. On May 1, 2004 he began preaching outside of a Planned Parenthood clinic on Locust Street, also in Philadelphia.

Marcavage was using a megaphone this time as well. Marcavage claims that he was approached by an unidentified Philadelphia police officer, who told him that the use of the megaphone was against the law. Despite the confrontation with the police, Marcavage was able to continue his preaching under “the threat of a possible citation.” The very next day, Marcavage and some of his associates attended “Sunday Out,” a blockparty that took place on Twelfth and Locust Streets. Sunday Out, sponsored by an organization called the Equality Forum, is one of several events in a week-long program celebrating the equality and civil rights of gay, lesbian, bisexual and transgendered persons. The events were undertaken pursuant to a permit issued by the City of Philadelphia, and were open to the public. The police felt that Marcavage’s message (which they claim was anti-homosexual) threatened to disrupt the event.

The officers also feared for Marcavage’s personal safety, indicating that people attending the event might attack him because of his message. The police, citing these safety concerns, forced Marcavage to the outside parameters of Sunday Out and restricted his movement to certain parts of the block party. Specifically, Defendant Tiano asked Marcavage to move from Locust Street to Spruce Street, one block away from the event. The police also used bicycle-patrol officers to separate Marcavage and the Sunday Out attendees. When Marcavage requested that he and his associates be allowed back into the event, Tiano refused because he could not assure their safety. Marcavage continued his preaching on the corner of Thirteenth and Locust.

The last police encounter took place, on June 13, 2004, Marcavage and his associates attended another gay pride event called the Philly Pride Parade. The day’s events included a parade, which ended at the intersection of Broad Street and Washington Avenue, and a block party, held in a gated lot on the northeast corner of that same intersection. Both events were undertaken pursuant to permits issued by the City of Philadelphia. Defendants Tiano and Fisher were in attendance.

Fisher (having the same safety concerns as before) informed Marcavage that he would have to engage in his open-air preaching on the northwest corner of the intersection. Marcavage insisted that Fisher allow him to cross the street, but Fisher refused, indicating that Marcavage would be arrested if he left the northwest corner. Marcavage did not cross the street and was not placed under arrest.

Soon after this last encounter, Marcavage filed the present action.

–  –  –

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of the case under the governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. After the moving party has met its initial burden, “the adverse party’s response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P.

56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “[I]f the opponent [of summary judgment] has exceeded the ‘mere scintilla’ [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant’s version of events against the opponent, even if the quantity of the movant’s evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.

1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from facts must await trial. Id.

–  –  –

Marcavage brings this action against the Individual Defendants and the City of Philadelphia, pursuant to § 1983 of the Civil Rights Act of 1871, which provides a cause of action against any person who, acting under color of state law, deprives another of his or her federal rights. Wright v.

City of Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005). Marcavage claims that the Defendants violated his rights to free speech and free exercise of religion by preventing him from expressing his religious viewpoints in public without fear of arrest or harassment. Similarly, Marcavage contends that the Defendants’ actions regarding his religious expression give rise to an equal protection violation. Plaintiff also claims that the two arrests violated his rights against protection from unreasonable seizure under the Fourth Amendment. Marcavage also brings supplemental state law claims alleging malicious prosecution and false imprisonment.

Marcavage moved for summary judgment on the first amendment claims and the malicious prosecution claims. Defendants opposed Plaintiff’s Motion, and moved for summary judgment on all claims.

A. Plaintiff’s First Amendment Claims (Claims I-II) In his Amended Complaint, Marcavage alleges that the Defendants’ activity on the dates in question denied him his right to freedom of speech and free exercise of religion, as guaranteed by the First Amendment. (Am. Compl. 202-13; Pl.’s Summ. J. Mem. at 2-7.) The parties filed cross-motions for summary judgment on the free speech claim, which the Court considers below.

The Supreme Court has outlined a three-step analysis for alleged violations of the First Amendment. This Court must first decide whether the speech at issue (here engaging in open-air preaching) is protected by the First Amendment. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985). Assuming that open-air preaching is protected speech, the Court must next identify the nature of the forum, “because the extent to which the Government may limit access depends on whether the forum is public or nonpublic.” Id. Finally, the Court must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Id. The dissemination of ones religious views is unquestionably protected under the First Amendment. See Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 647 (1981). Furthermore, the parties agree that the areas in question are public fora. ( See Pl.’s Summ. J. Mem. at 4-5; Defs.’ Summ. J. Mem. at 4-5.) Therefore, in order to determine the appropriateness of summary judgment, this Court must decide whether the police’s restriction of Marcavage’s speech during the incidents in question was reasonable, under the applicable First Amendment standard.

The extent to which the Government may limit speech depends on whether the forum is public or nonpublic. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). As a general rule, the government may limit speech that takes place on its own property without much First Amendment restriction. Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). Where the area in question is a traditional public forum though, the government’s ability to limit speech is “impinged upon by the First Amendment.” Christ’s Bride Ministries v. SEPTA, 148 F.3d 242, 247 (3d Cir. 1998) (citing Perry, 460 U.S. at 45-46). Content-based restrictions on private speech in public fora must survive strict scrutiny in order to pass constitutional muster. Id.

(citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)). If, however, the restriction in question is “viewpoint neutral,” a government’s burden is not as high. Christ’s Bride Ministries, 148 F.3d at 247. Viewpoint neutral restrictions need only be “reasonable in light of the purpose served by the forum.” Id. (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995). Regarding public fora, governments may impose time, place and manner restrictions on speech, so long as those restrictions are reasonable, and are necessary to achieve a significant governmental interest. Grayned v. City of Rockford, 408 U.S. 104, 115 (1972).

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