Case Information
*2 VANASKIE, Circuit Judge.
This appeal presents us with another case brought by Michael Marcavage arising out of his interactions with law enforcement authorities while Marcavage and others engaged in demonstrations in public places. [1] This action asserts violations of Marcavage’s First, Fourth, and Fourteenth Amendment rights by the City of Philadelphia (“the City”) and a number of its police officers. The District Court granted the defendants’ motion for summary judgment, and we will affirm.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
*3
This litigation arises from incidents at four events in Philadelphia: (1) the June 10,
2007 PrideFest; (2) the June 8, 2008 PrideFest; (3) the November 15, 2008 Proposition 8
demonstration; and (4) the May 3, 2009 Equality Forum.
[2]
Organizers at each event had
obtained permits from the City to undertake their public demonstrations, which were
generally supportive of gay rights. At each event, Marcavage and his group vocally
condemned homosexuality. In all instances, event participants reacted by “shouting at,
debating with, trying to surround, and getting physically close to Marcavage and
members of his group.”
Marcavage v. City of Phila.
,
*4 During the May 3, 2009 Equality Forum, Jake Gardner, a member of Marcavage’s group, was physically separated from the event marchers by police officers. [3] When Marcavage sought to protest Gardner’s treatment, he was grabbed by an officer and moved approximately five feet from the street and onto the sidewalk. A scuffle between Marcavage and several officers ensued when Marcavage was seen with a silver object in his hands. Marcavage states that he was placed in a “choke hold.” Id. at 568, n.17. Once it was determined that the object was a camera, the hold was released, though the officer kept his hand on Marcavage’s back for an additional five seconds while Marcavage argued with another officer. After those five seconds, the officer removed his hand from Marcavage’s back and his camera was returned to him.
Marcavage’s complaint asserts that the actions of the City police officers in separating him from the demonstrators abridged his First Amendment rights. Applying , another case involving Marcavage and with facts that “are almost identical to those” here, the District Court held that Marcavage’s First Amendment rights were not infringed. Id. at 565.
Marcavage’s complaint also asserts that his Fourth Amendment rights were violated during the physical encounter he had with police at the May 3, 2009 Equality Forum. The District Court found no violation of Marcavage’s Fourth Amendment rights arising from this incident. The initial seizure of Marcavage was not unreasonable, the District Court reasoned, because the police officers had a justifiable basis to restrain Marcavage to control the situation, and the seizure lasted for just over one minute and *5 “ended once the situation . . . was stabilized.” Id. at 569. On the issue of unreasonable force, the District Court found that the force employed by the officers was justified “in light of the circumstances,” because “safety is a primary concern for officers that are engaged in seizing an individual,” and was not excessive given its short duration and the fact that “Marcavage did not seem to struggle to remain standing” while in the “choke hold” and “was able to shout during the struggle.” Id. at 571.
Finally, Marcavage’s complaint asserts that his rights to freedom of travel, privacy, and equal protection were violated during each of the four events. The District Court concluded that in no instance was there a violation of any of these rights.
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we
have appellate jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary
judgment is
de novo
, and we apply the same standard as the District Court.
Pa. Coal
Ass’n v. Babbitt
,
A.
We begin by examining Marcavage’s First Amendment claims. As we observed
in , there are three questions that underpin the analysis of a First Amendment
challenge arising from exclusion from an event: “(1) whether the speech is ‘protected by
*6
the First Amendment’; (2) ‘the nature of the forum’; and (3) whether the government's
‘justifications for exclusion from the relevant forum satisfy the requisite standard.’” 533
F.3d at 192 (quoting
Cornelius v. NAACP Legal Def. and Educ. Fund, Inc.
,
Marcavage argues “that his speech and his movements were restricted because of the content of his message and/or the crowd’s reaction, real or perceived, to that message.” (Appellant’s Br. at 22.) In particular, Marcavage points to the fact that Captain Fisher referred to Marcavage as the leader of a “dissident group” in need of police protection. (Appellant’s Reply Br. at 7.) Marcavage argues that “if he had a message that was pro-homosexual, Fisher would not have bothered him at all.” (Appellant’s Reply Br. at 8.) Marcavage concludes that this amounts to viewpoint discrimination. Marcavage also contends that moving him because the crowd did not like his message “constitutes an unconstitutional heckler’s veto.” (Appellant’s Br. at 41.) (citation omitted).
We disagree with Marcavage’s analysis. There is no evidence from any of the
events that the City relocated Marcavage because it disagreed with the content of his
speech. While the officers did necessarily consider the content of Marcavage’s speech
when deciding to impose restrictions on him that would separate his counter-protest from
event participants, this does not make the restrictions content-based. As the Supreme
Court observed in
Hill v. Colorado
,
It is common in the law to examine the content of a communication to determine the speaker's purpose. Whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the precise content of the statement. We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.
The Supreme Court further explained in
Ward
that “[t]he government's purpose is the
controlling consideration. A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or
messages but not others.”
In all instances, the officers acted with a purpose that was distinct from
suppressing the content of Marcavage’s speech. We explained in that “[t]he
right of free speech does not encompass the right to cause disruption.”
The second prong of the analysis is whether the City’s actions were narrowly tailored to serve a significant governmental interest. We held in that the City possesses a significant interest in keeping the peace and ensuring that the message of the permitted events is effectively conveyed. See id. Marcavage, as a counter-protestor, certainly “possess[es] a First Amendment right to communicate [his] message in a public forum,” but his “rights are not superior to the First Amendment rights of” the event organizers. Id.
The officers allowed Marcavage to speak directly to the crowd until they
determined the level of the rhetoric might incite a physical altercation. At this point,
Marcavage was relocated a short distance away from event participants. As the District
Court observed, this was “often only fifteen to twenty feet from where he wished to be,”
Marcavage
,
“[R]estrictions on the time, place, or manner of protected speech are not invalid
‘simply because there is some imaginable alternative that might be less burdensome on
speech.’”
Ward
,
The final prong of the analysis is whether the City left open to Marcavage ample
alternative channels for communication.
Startzell
is again on point. We noted there that
if a speaker was unable to reach his “ ‘intended audience,’” the “‘alternative is not
ample.’”
*10 Marcavage unsuccessfully attempts to distinguish Startzell . He notes that “ Startzell involved . . . a group of demonstrators [who] were removed from within a permitted event ,” but here, on the other hand, “Marcavage was not even inside of the event area.” (Appellant’s Br. at 26-27.) Furthermore, Marcavage argues that “there is no evidence in this case that Marcavage did anything to disrupt the event,” unlike in Startzell , where Marcavage and his group “‘used loud bullhorns to express their message near the stage area, directly addressed an Outfest attendee in a confrontational manner, and blocked access to the vendor booths.’” (Appellant’s Br. at 27.) (quoting Startzell , 533 F.3d at 199).
Marcavage would limit
Startzell
’s holding to the boundary of a permitted event, so
that counter-protestors could freely disrupt an event so long as they never set foot within
it. This would completely eviscerate
Startzell
, as counter-protestors could completely
block the entrance to an event, or direct amplified sound from the perimeter of the event
so as to drown out event speakers.
Startzell
identifies as a significant governmental
interest the ability of the City to ensure “that a permit-holder can use the permit for the
purpose for which it was obtained.”
We also disagree that “there is no evidence in this case that Marcavage did anything to disrupt the event.” (Appellant’s Br. at 27.) While the disruption he caused in may have been greater than here, this is merely a difference of degree. At each event in question Marcavage attracted agitated crowds, and during the Equality Forum one of his associates had a physical encounter with an event participant.
In any event, police officers are not required to wait for actual disorder before imposing minimal restrictions. As the Eighth Circuit noted in ACORN v. St. Louis County , “[t]he government need not wait for accidents to justify safety regulations.” 930 F.2d 591, 596 (8th Cir. 1991) (citation omitted). Accordingly, Marcavage’s claim under the First Amendment fails.
B.
With respect to the May 3, 2009 Equality Forum, Marcavage argues that the officers had no “reason to suspect that ‘criminal activity was afoot,’” thus rendering the officers’ conduct in seizing him unreasonable and a violation of the Fourth Amendment. (Appellant’s Br. at 58.) Marcavage further argues that “the facts of this case clearly show that Defendants’ use of force on May 3, 2009 was excessive.” (Appellant’s Br. at 60.)
Under
Terry v. Ohio
,
Similarly, the force applied by the police was also reasonable. The Supreme Court
observed in
United States v. Hensley
,
C.
Marcavage also alleges that he was denied equal protection of the law. He notes that “[d]uring the 2008 PrideFest event . . . members of two different organizations, an animal rights group and a group soliciting signatures to put Ralph Nader on the election ballot were allowed to move freely wherever they want[ed] to go while Marcavage’s movements were restricted.” (Appellant’s Br. at 51.) Marcavage further alleges that during both PrideFest years and the Proposition 8 demonstration, “people who were attending the events and people who were counter-demonstrating against Marcavage” *13 were given “unfettered access to public streets and sidewalks outside of the entrance to the festival while Marcavage was denied such access.” (Appellant’s Br. at 51.) Marcavage specifically points to an individual, James Duggan, as an example of someone “who frequently provides a counter viewpoint to Marcavage’s messages and was present at both [PrideFest] events,” and who was able to “mov[e] freely around.” (Appellant’s Br. at 51-52.) Marcavage argues that “[t]hese individuals were similarly situated to Marcavage in every way,” and there was therefore “no rational basis” for the alleged “disparate treatment of Marcavage.” (Appellant’s Br. at 52-53.)
We disagree. None of the individuals Marcavage points to attracted agitated
crowds, counter-protested the permitted event, or engaged in verbal and physical
confrontations with event participants. While James Duggan, the Ralph Nader
supporters, and the animal rights activists may have been “in all relevant respects alike”
to each other, none of these individuals were similarly situated to Marcavage because of
his status as a counter-protestor and the potential for disruption he presented.
Nordlinger
v. Hahn
,
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
[6]
*14
which a reasonable person would have known.”
Harlow v. Fitzgerald
,
Notes
[1] Other cases involving similar circumstances and Marcavage include
Marcavage
v. National Park Service
,
[2] Three of these four events were videotaped. ( See A. 44-46.) The November 15, 2008 Proposition 8 demonstration was not recorded.
[3] This entire encounter was videotaped. ( See A. 46.)
[4] Marcavage also relies upon a settlement agreement that the City entered into
with an unrelated protestor in which the City agreed to train its officers to allow
demonstrators to “‘stand anywhere’” unless there was “‘specific danger or actual
obstruction of vehicular or pedestrian travel.’” (
See
Appellant’s Br. at 47.) (quoting A.
116.) We note first that Marcavage has no power to enforce this agreement, as it is not a
consent decree and Marcavage is a stranger to the settlement.
See Blue Chip Stamps v.
Manor Drug Stores
,
[5] We do not address the alleged violations of Marcavage’s rights to freedom of travel and privacy as Marcavage did not raise these issues on appeal.
[6] Though it is unnecessary for us to reach the issue of qualified immunity, we observe that even if the individual defendants had violated Marcavage’s constitutional rights, qualified immunity would apply to shield them from liability for civil damages, “as their conduct does not violate clearly established statutory or constitutional rights of