995 F. Supp. 2d 390
E.D. Pa.2014Background
- On July 3 and August 22, 2010, five Christian evangelists associated with Repent America preached outside Masjid Al Jamia (Walnut St., Philadelphia); crowds formed and confrontations with congregants occurred.
- Penn police officers (Cooper, Michel, Thammavong) responded July 3; Fleck and Marcavage were arrested for disorderly conduct/obstruction (later acquitted or charges withdrawn); Marcavage’s camera was taken and footage initially reported erased.
- On August 22 Lt. Stanford (Philadelphia PD) intervened; he temporarily took Marcavage’s camera, detained/searched him briefly, then returned the camera that night; no arrests that night.
- Plaintiffs sued under 42 U.S.C. § 1983 (First, Fourth, Due Process, Monell) and Pennsylvania tort law (false arrest, false imprisonment, malicious prosecution) against Penn (Trustees and named Penn officers) and City of Philadelphia (and Lt. Stanford); AlliedBarton previously dismissed.
- Defendants moved for summary judgment unopposed; the court reviewed the merits and drew inferences for plaintiffs where required.
- The court held Penn police are state actors (Penn trustees proper § 1983 defendant) but granted summary judgment to Penn and City on all federal and state claims based on content-neutral crowd-control justifications and qualified immunity/post-deprivation remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Penn police are state actors for § 1983 | Penn police actions are state action because they exercise municipal police powers in a broad patrol zone | Penn (initially) argued it is private; defendants moved on qualified immunity but did not contest state-action at summary judgment | Penn police were state actors; Trustees of the Univ. are proper § 1983 defendants |
| First Amendment (July 3 & Aug 22) — did officers impermissibly restrict religious speech? | Plaintiffs: officers suppressed preaching, chilled speech, and targeted message | Defendants: actions were content-neutral time/place/manner enforcement to preserve public order and safety | No First Amendment violation; officers gave content-neutral orders to move or lower volume and did not prohibit speech |
| Fourth Amendment / Qualified immunity for arrests (July 3) | Plaintiffs: arrests lacked probable cause; camera seizure/unlawful search | Defendants: disorderly conduct and obstruction justified by loudness, blocking doorway, crowd risk; officers reasonably perceived threat — qualified immunity applies | Officers had probable cause for disorderly conduct; qualified immunity protects officers for arrests; no Fourth Amendment violation |
| Seizure/erasure of video & Due Process claim | Plaintiffs: seizure and erasure of recording violated First and Fourth Amendment and Due Process (intentional deprivation) | Defendants: camera seizure was reasonable under circumstances; camera returned same night (adequate post-deprivation remedy); erasure not shown to be intentional | No clearly established right to record where recording interfered with crowd-control; seizure and brief retention lawful; erasure not shown to be intentional so no due process violation |
Key Cases Cited
- Monell v. Dept. of Social Servs., 436 U.S. 658 (1978) (municipal liability requires a policy, custom, or practice causing the constitutional violation)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified immunity two-step: constitutional violation and clearly established law)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner restrictions must be content neutral, narrowly tailored, and leave open ample alternatives)
- Frisby v. Schultz, 487 U.S. 474 (1988) (government may narrowly restrict speech in particular locales to protect privacy and order)
- Henderson v. Fisher, 631 F.2d 1115 (3d Cir. 1980) (university campus police can be state actors where endowed with municipal police powers)
- Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) (right to videotape police during stops not clearly established in the Circuit at that time)
- New York v. P.J. Video, Inc., 475 U.S. 868 (1986) (seizure of films implicates First Amendment concerns)
- Daniels v. Williams, 474 U.S. 327 (1986) (negligent deprivation of property does not state a due process claim under § 1983)
- Hudson v. Palmer, 468 U.S. 517 (1984) (unauthorized intentional deprivations of property may be remedied post-deprivation if adequate state remedies exist)