MARCAVAGE v. National Park Service, 777 F. Supp. 2d 858

Background

Marcavage sues NPS, DOI, and officers Saperstein and Crane for civil rights violations and battery arising from his arrest during an anti-abortion rally on Sixth Street, Independence National Historical Park.
Saperstein told Marcavage his sidewalk area was not designated for First Amendment activity and directed him to move to a different area; Crane encouraged the move by phone.
Marcavage refused to move; he was escorted off the sidewalk around 2:05 p.m.; Saperstein held his hands behind his back and issued a citation for violating a permit term.
Marcavage was later convicted in federal court for interfering with agency functions and violating permit terms; those convictions were later reversed in part by the Third Circuit and remanded for further analysis.
The amended complaint asserts First Amendment, Equal Protection, Fourth Amendment, and declaratory/injunctive relief claims; a battery claim is later conceded as exhausted administratively.
Defendants move to dismiss under Rule 12(b)(6) or, alternatively, for summary judgment; the court must assess jurisdiction and plausibility of claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Bivens action lies for First Amendment violations against federal officers.	Marcavage seeks damages for First Amendment rights violation by Saperstein and Crane.	Bivens should not extend to First Amendment claims or against federal agencies.	First Amendment claim actionable under Bivens; not dismissed on immunity grounds at this stage.
Whether Saperstein and Crane are entitled to qualified immunity on the First Amendment claim.	Right was clearly established, so immunity should not apply.	Right not clearly established; officers acted reasonably under forum status and regulations.	Qualified immunity does not defeat the claim; the court proceeds to analysis recognizing open status of the forum at the time.
Whether Marcavage's Fourth Amendment claim is barred by qualified immunity.	Arrest without probable cause violated the Fourth Amendment.	Probable cause existed for escort and citation under 36 C.F.R. § 2.32.	Dismissed Fourth Amendment claim on qualified immunity grounds.
Whether Marcavage states a valid Equal Protection claim.	Marcavage was treated differently from others in the same situation.	Groups were not similarly situated and treatment was reasonable or not discriminatory.	Count II dismissed for failure to state a claim.
Whether Counts III and IV for declaratory and injunctive relief are moot and should be dismissed.	Relief needed to prevent ongoing or future violations.	New park regulations open Sixth Street for First Amendment activity; case moot.	Counts III and IV dismissed for lack of subject matter jurisdiction.

Key Cases Cited

Marcavage III, 609 F.3d 264 (3d Cir.2010) (First Amendment rights exist in Bivens actions; forum status at time of arrest analyzed)
Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (assumes First Amendment violation actionable under Bivens; plausibility standard)
Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (qualified immunity two-prong framework (later modified))
Mitchell v. Forsyth, 472 U.S. 511 (U.S. 1985) (policies on qualified immunity and error tolerance)
Wilson v. Layne, 526 U.S. 603 (U.S. 1999) (avoid disturbing reasonable beliefs when there is disagreement on constitutional question)
Gregoire v. Centennial Sch. Dist., 907 F.2d 1366 (3d Cir.1990) (public fora, public/nonpublic forum distinctions, content-based restrictions)
Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir.2008) (public forum status and equal protection considerations in sidewalk contexts)
Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (U.S. 1985) (limitations on viewpoint discrimination in nonpublic forums)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (U.S. 1983) (public forums and permissible restrictions in designated channels)
Marcavage II, 2009 WL 2170094 (E.D. Pa. 2009) (analysis pre-dating Third Circuit reversal on public forum status)