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Marcavage v. City of Chicago

July 20, 2009


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Michael Marcavage ("Marcavage"), James ("James") and Faith Deferio (collectively "the Deferios") have brought this action against the City of Chicago ("City"),*fn1 the Metropolitan Pier and Exposition Authority ("Authority") and a number of City's police personnel,*fn2 charging each with violations of plaintiffs' constitutional civil rights in connection with their protest activities during Chicago's Gay Games. Plaintiffs have brought a motion for partial summary judgment under Fed.R.Civ.P.("Rule") 56, and City and the individual officers other than Rodriguez (see n.2) have cross-moved for summary judgment. For the reasons stated here, defendants' motion is granted while plaintiffs' is denied, and this action is dismissed as to the moving defendants.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider evidentiary records in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

One more complexity is added where, as here, cross-motions for summary judgment are involved. Those same principles require the adoption of a dual perspective that this Court has sometimes referred to as Janus-like: As to each motion the non-movant's version of any disputed facts must be credited. What follows, then, is a summary of the facts in those terms.*fn3


Marcavage and the Deferios are volunteers with Repent America, an evangelistic organization based in Philadelphia, Pennsylvania (D. St. ¶9). Repent America's goal is to proclaim the Gospel of Jesus Christ publicly through prayer, the display of signs, the distribution of religious literature and public preaching (P. St. ¶1; D. St. ¶9).

From July 15 to July 22, 2006*fn4 Chicago was the host city for the Gay Games ("Games"), an athletic and cultural event held once every four years "to foster and augment the self-respect of lesbians and gay men throughout the world and to engender respect and understanding from the nongay world" (D. St. ¶13). Marcavage and the Deferios traveled to Chicago during the Games to evangelize and preach and specifically sought to communicate to homosexuals in attendance that homosexuality is a sin (D. St. and P. Resp. St. ¶14). Their claims in this action relate to Games events held at Soldier Field, Navy Pier (sometimes referred to simply as "the Pier") and Wrigley Field.

Soldier Field

Soldier Field was the location for the opening ceremonies of the Games on July 15 (D. St. ¶15). During that afternoon plaintiffs preached, held signs and attempted to distribute religious literature and talk with Games attendees on a public walkway near Soldier Field (P. St. ¶3; D. St. ¶16). Although they wished to stand on a sidewalk directly across from an entrance to the Field Museum, plaintiffs were directed to move to a gravel area east of that sidewalk (P. St. ¶7; D. St. ¶18). Deputy Chief Daniel Dugan ("Dugan"), the Chicago Police Commander for the opening ceremonies, told plaintiffs that if they remained on the sidewalk, they would be arrested (P. St. ¶6; D. St. ¶18).

While on the gravel space plaintiffs were free to engage in expressive activities, including preaching to passersby, holding signs, distributing pamphlets and using bullhorns (D. St. ¶19). According to plaintiffs, however, they were unable to communicate effectively with their intended audience (homosexuals attending and participating in the Games) from that location because the participants did not walk directly in front of them, making it difficult to engage in one-on-one conversations or to give them religious tracts (P. Resp. St. ¶19). Other people opposing the Games engaged in expressive conduct at that same location (D. St. ¶20).

After some time Marcavage left the gravel space and joined a conversation between police officers and two other protesters not affiliated with Repent America (D. St. ¶23). Police officers explained to Marcavage that demonstrators were free to preach on the sidewalks as long as they remained moving, but they could not stop on the sidewalks to do so (D. St. ¶24). Dugan told Marcavage that he could demonstrate while standing still anywhere along the sidewalk as long as he remained on the grass alongside the sidewalk, rather than on the sidewalk itself (id.). About the same time a man was standing still selling newspapers on a paved sidewalk west of the area where plaintiffs sought to demonstrate (P. St. ¶8; D. St. ¶25). Dugan told Marcavage that the man could stay there because that was "freedom of the press" (P. St. ¶8).

Navy Pier

Navy Pier is owned by Authority, an Illinois governmental unit (D. St. ¶5). Gateway Park is located just west of the Pier and provides a dramatic entrance to the Pier's facilities. As stated in Authority's "Policy for Public Expression at Navy Pier and the Headlands," anyone wishing to engage in public expression on Navy Pier or in Gateway Park must first obtain a permit from Authority (D. St. ¶29).

On July 16 plaintiffs went to Navy Pier, the location of a Games event, to engage in public expression of their religious message (P. St. ¶13; D. St. ¶29). After plaintiffs left the parking garage, Navy Pier security guards informed them that they could not demonstrate on Navy Pier without a permit (P. St. ¶14; D. St. ¶32). According to plaintiffs, they did not want to obtain a permit because they wished to remain anonymous and did not want to put their names on a document that might cause them to be harassed, nor could they plan ahead,*fn5 thus requiring them to engage in spontaneous rather than planned speech (P. St. ¶16).

When plaintiffs arrived at the walkway in front of the Pier, the guards directed them to cross the street toward Gateway Park. But plaintiffs refused to do so, instead walking south along the sidewalk in front of Navy Pier's main entrance (D. St. ¶33).

They then encountered Officer Andrews, who had already been working at Navy Pier for a few days and who had been called by Navy Pier's security guards for assistance (D. St. ¶34). After conferring with the guards, Andrews told plaintiffs that they needed to cross the street to Gateway Park or they would be arrested (P. St. ¶19; D. St. ¶¶34-35).

Plaintiffs, along with other members of their group, then walked westward across the street and arrived at the sidewalk on the eastern edge of Gateway Park (D. St. ¶36). Andrews then told them that they could not remain there either because they did not have a permit, so they had to move west past the western edge of the park or they would be arrested (id.; P. St. ¶22). While other members of the group, including James, began to walk westward in compliance with Andrews' orders, Marcavage continued to question Andrews' directive and called 911 to talk to a supervising officer (P. St. ¶27; D. St. ¶38 ). At that point Andrews handcuffed Marcavage (P. St. ¶27).

As he was walking west into Gateway Park, James began to record the events on his video camera (P. St. ¶28). After he walked about 50 feet into the park, James turned around and started walking back toward Andrews and Marcavage (D. St. ¶39). Once he was within 20 feet of them, Andrews arrested James for criminal trespass at Navy Pier (P. St. ¶33; D. St. ¶39).

Sergeant Kelly Braithwaite then arrived on the scene, and Andrews released Marcavage from the handcuffs (P. St. ¶29). James, on the other hand, was taken to the police station, where Andrews completed the arrest reports and case reports for the arrest (P. St. ¶30; 32). After the arrest Marilynn Gardner, the general manager of the Pier, told police she did not want to press charges against James, and he was released (P. St. ¶38). Wrigley Field

Closing ceremonies for the Games were held at Wrigley Field on July 22. Plaintiffs arrived at various nearby locations and began to demonstrate at approximately 1 p.m. (D. St. ¶40). At about 1:35 p.m. Marcavage began to walk east from the sidewalk at the southwest corner of Wrigley Field along the north side of the street (P. St. ¶49; D. St. ¶41). In one hand Marcavage carried a video camera, which he was using to record the events, and in the other hand he carried a sign stating that homosexuality is a sinful perversion and that marriage is between one man and one woman (P. St. ¶¶48-49; D. St. ¶41). As he walked, Marcavage passed a man handing out literature on the sidewalk, a person waving a gay pride flag in the plaza outside of Wrigley Field and a man protesting President Bush (P. St. ¶49; D. St. ¶42).

Marcavage stopped on the sidewalk immediately west of the crosswalk on Sheffield Avenue at the southeast corner of Wrigley Field (P. St. ¶53; D. St. ¶49). Sergeant Teneyuque then approached Marcavage and directed him to keep walking (P. St. ¶53; D. St 50). Marcavage responded that he had a right to be on the public sidewalk and was not blocking anyone (P. St. ¶54; D. St. ¶50). As Marcavage continued to insist that he had a right to stand there, a Wrigley Field employee told Marcavage that he needed to cross the street because he was standing on Wrigley Field property during a permitted event (D. St. ¶51).

Also during this time, a man protesting about President Bush came onto the same corner where Marcavage and Teneyuque were standing (D. St. ¶52). Teneyuque then said that everybody had to cross the street (D. St. ¶53). At his direction the protester moved back to the area north of the crosswalk on Sheffield Avenue, where he had been earlier (id.).

Marcavage, however, refused to move from the sidewalk and continued to object to Teneyuque's repeated directions (D. St. ¶53). He then crossed to the south side of the street, briefly spoke to James and exchanged videotapes with him and then returned to the same location from which Teneyuque had told him to move (P. St. and D. St. ¶55). Teneyuque again approached Marcavage and told him he could not stand in one place and instructed him to cross the street (P. St. ¶57; D. St. ¶56). After Marcavage again refused, he was arrested for disorderly conduct (P. St. ¶¶58-59, 66; D. St. ¶¶56-57).*fn6

Marcavage videotaped the entire exchange with Teneyuque: Their initial encounter was preserved on the videotape Marcavage gave to James, and the later encounter was recorded on the videotape that he received from James when he crossed the street (P. St. ¶60). Marcavage's camcorder was still on and recording when it was taken from him by Officer Madrigal after his arrest (P. St. ¶64; D. St. ¶58). Madrigal had possession of the video camera for a period of time after Marcavage's arrest (P. St. and D. Resp. St. ¶65). When played back, the tape that was in that video camera now shows just a black picture with background noise (P. St. ¶72).

First Amendment Claims

Marcavage and the Deferios assert that their First Amendment rights were violated by the restrictions imposed by defendants on their protest activities at Soldier Field, Navy Pier and Wrigley Field. Whether and to what extent the First Amendment permits the regulation of access to government property is determined by how that property is characterized. In traditional public forums, places such as streets and parks that have long been devoted to assembly and debate, the government's ability to regulate expressive activity is limited (Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983)). Any content-based exclusion is subject to strict scrutiny--that is, the government "must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end" (id. at 45). Reasonable time, place and manner regulations that are content-neutral are permissible, so long as they "are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication" (id.).

Defendants do not seem to dispute that the locations at issue in this litigation--the areas near Soldier Field, Gateway Park and Wrigley Field where plaintiffs demonstrated--would be considered traditional public forums subject to heightened First Amendment protections.*fn7 Instead they argue that the restrictions imposed on plaintiffs' expressive activities were reasonable and content-neutral time, place and manner restrictions and were therefore permissible without running afoul of plaintiffs' First Amendment rights.

As to whether a regulation is content-neutral, the principal inquiry "is whether the government has adopted a regulation of speech because of disagreement with the message it conveys" (Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). In that regard the government's purpose, not the regulation's effect, is controlling (id.):

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.

This opinion turns then to the specific restrictions that plaintiffs assert were violative of their First Amendment freedoms. As before, the three ...

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