On The Front Lines
Winchester Police Admit to Conducting Surveillance on Street Preachers
WINCHESTER, Va.-- In a sworn statement filed yesterday in the Federal District Court for the Western District of Virginia, a police officer has admitted that he was ordered to go undercover for the purpose of monitoring street preachers in Winchester, Virginia. According to the officer's statement, he used a recording device to film the preachers as they expressed their sincerely-held religious beliefs during the 2010 Apple Blossom Festival. The Rutherford Institute is representing the street preachers in a federal lawsuit challenging a Winchester ordinance that prohibits all unnecessary noise--a term that includes verbal expression--as well as noise considered annoying or disturbing to others for any reason.
A copy of the complaint in Marcavage v. City of Winchester is available here.
"Our client isn't a criminal--he's a street preacher," stated John W. Whitehead, president of The Rutherford Institute. "Winchester's citizens should be alarmed by the fact that police are sending undercover agents to record people expressing their religious beliefs."
The Rutherford Institute filed a First Amendment lawsuit in federal court in November 2010 against the City of Winchester, its police chief and another police officer, charging that the City's noise ordinance, which prohibits sounds that "annoy" or "disturb" others, is unconstitutional. The case arose out of events that transpired during the 2010 Apple Blossom Festival in which Christian street preacher Michael Marcavage was prevented from preaching about his religious beliefs on a public sidewalk after a passerby complained that he felt "uncomfortable" with the message.
Prior to the festival, Marcavage contacted Winchester Police Chief Kevin Sanzenbacher to clarify whether the noise ordinance permitted the use of sound amplification devices. At that time, Sanzenbacher assured Marcavage that the noise ordinance did permit the use of microphones. Based on that information, Marcavage and other Christian evangelists traveled to Winchester to preach on the public sidewalks during the 2010 Apple Blossom Festival. However, when a single citizen complained that he was "uncomfortable" with the street preachers' expression, a police officer informed Marcavage that his use of the microphone violated the City's noise ordinance. After about 45 minutes elapsed, Marcavage chose to continue his use of the microphone, but he did so under threat of citation should another person complain. Unbeknownst to Marcavage, he and his fellow street preachers were under police surveillance during the festival, with their actions recorded by police. Winchester Police Chief Kevin Sanzenbacher justified the surveillance by stating that he was "[c]oncerned that Mr. Marcavage was intent on accusing my department of violating his constitutional rights."
The federal lawsuit challenges Winchester's ordinance both on its face and as applied to him during the Festival. The complaint charges that the ordinance violates the First Amendment's guarantee of free speech and is unconstitutionally vague and overbroad. Prior to filing the lawsuit, Institute attorneys made a number of attempts to enlist the City's cooperation in rewording the unconstitutional portions of the ordinance, but City officials repeatedly refused to return phone calls and e-mails from Institute attorneys.
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