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Anti-Abortion Demonstrator Loses Damage Action Against Park Service Officers On Qualified Immunity Grounds

By Howard M. Friedman

Michael Marcavage, director of Repent America, has lost in his attempt to recover damages from National Park Service officers who required him to end the 2007 anti-abortion rally he was conducting in front of the entrance to Philadelphia's Liberty Bell Center and told him he could demonstrate only in a nearby area that was designated a First Amendment area under Independence National Historical Park regulations.  Last June, in United States v. Marcavage, the 3rd Circuit vacated Marcavage's conviction for interfering with an agency function, finding that the sidewalk on which he was demonstrating was a traditional public forum.  Now, however, in Marcavage v. National Park Service, (ED PA, March 9, 2011), a Pennsylvania federal district court held that while a damage action under Bivens action may be brought against federal officials for 1st Amendment violations, the Park Service officers involved have qualified immunity. The court concluded that content-based, as opposed to viewpoint-based, restrictions are permissible in a non-public forum and:

it was not clearly established that the Sixth Street sidewalk was a public forum at the time of Marcavage's arrest. While the Court of Appeals ultimately decided that it was, the question was open at the time.... 

The court also rejected Marcavage's equal protection claim.

Full post as published by Religion Clause on March 15, 2011 (boomark / email).