Marcavage v. National Park Service, 666 F.3d 856

Marcavage, a §1983 plaintiff, sues the National Park Service, the Department of the Interior, and Park Service Rangers Saperstein and Crane for alleged First, Fourth, and Equal Protection violations.
The district court dismissed the damages claims under Bivens non-waiver principles and granted qualified immunity to the rangers on the First and Fourth Amendment claims, and dismissed the equal protection claim as not properly situated.
On October 6, 2007, Marcavage conducted an anti-abortion demonstration on the Sixth Street sidewalk at the Liberty Bell Center; the sidewalk was shared with tourists, horse and carriage operators, and participants in a separate walk.
Saperstein told Marcavage to vacate the sidewalk because it was not designated a First Amendment area; he permitted Marcavage to conduct a rally across the plaza on a sidewalk designated for First Amendment activity, which Marcavage refused to use.
Around 2:05 p.m., Saperstein escorted Marcavage off the sidewalk, handcuffed him, and issued citations for violating permit terms and for interfering with agency functions; Marcavage was convicted in federal court, and the conviction was later vacated on First Amendment grounds in Marcavage III.
While the criminal appeal was pending, Marcavage filed this civil action; district court stayed proceedings pending the criminal appeal and later dismissed the damages claims, finding the Park Service changes moot for declaratory and injunctive relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Qualified immunity for First Amendment claim	Marcavage contends First Amendment rights to demonstrate on the sidewalk were clearly established.	Rangers reasonably believed they were enforcing nonpublic-forum restrictions and maintaining safety.	Rangers entitled to qualified immunity; right not clearly established.
Qualified immunity for Fourth Amendment claim	Marcavage asserts no probable cause for arrest.	There was substantial evidence supporting probable cause, enough for a conviction at the time.	Rangers entitled to qualified immunity; probable cause was present under the circumstances.
Equal protection 'class of one' claim	Marcavage alleges arbitrary differential treatment on the sidewalk.	Differences in conduct (permit status, duration, noise, potential interference) justify different treatment.	Equal protection claim fails; Marcavage was not similarly situated.
Mootness of declaratory/injunctive relief	Park Service’s new permit-less demonstration rules show ongoing policy concerns; relief should be available.	Policy changes do not demonstrate ongoing risk; the Sixth Street sidewalk is now a public forum with clear regulations.	Claims for declaratory and injunctive relief moot; changes in regulations render relief unavailable.

Wilson v. Layne, 526 U.S. 603 (1999) (mirroring standard for qualified immunity when judges disagree on constitutional questions)
Saucier v. Katz, 533 U.S. 194 (2001) (two-prong test for qualified immunity; right clearly established in light of the case context)
Hunter v. Bryant, 502 U.S. 224 (1991) (ample room for mistaken judgments; protects all but plainly incompetent officers)
Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005) (arrest decisions under regulatory schemes can be insulated by qualified immunity unless clearly unconstitutional)
Marcavage III, 609 F.3d 264 (3d Cir. 2010) (vacates conviction and holds Sixth Street sidewalk was a public forum for First Amendment purposes)