TRI In The News
Police Removed from Preacher's Lawsuit
7/15/2011
TRI IN THE NEWS: POLICE REMOVED FROM PREACHER'S LAWSUIT
From The Northern Virginia Daily
Original article available here.
HARRISONBURG -- A federal judge has dropped two Winchester police officials from a man's civil rights lawsuit that claimed authorities wrongfully stopped him from preaching to crowds at the 2010 Shenandoah Apple Blossom Festival.
But a claim against Winchester's noise ordinance can move forward, according to an opinion entered Tuesday in U.S. District Court in Harrisonburg.
An order filed by U.S. District Judge Samuel G. Wilson granted a defense motion to dismiss claims against Winchester police Chief Kevin Sanzenbacher and Lt. J.M. Danielson "on the basis of qualified immunity."
"However, the court finds disputed facts material to the question of whether the plaintiffs have standing to mount a facial challenge to the Winchester ordinance and will hold an evidentiary hearing to determine those facts," Wilson states in his memorandum opinion.
Sanzanbacher and Danielson "transgressed no bright lines in enforcing the ordinance, and are therefore immune," Wilson opined.
The Rutherford Institute filed a complaint in the court in early November on behalf of Christian street preacher Michael Marcavage, the director of Repent America, based in Philadelphia. The complaint charges that police violated Marcavage's First Amendment rights when they stopped him from using an amplified microphone to speak to people gathered downtown for the annual festival in May 2010. The lawsuit names Sanzenbacher, Danielson and the city of Winchester as defendants.
The Charlottesville-based institute also disputes the constitutionality of Winchester's noise ordinance, which authorities used to stop the street preacher.
The plaintiffs seek a judgment declaring the ordinance invalid and an injunction to enjoin its enforcement as well as damages.
Staunton defense attorney Rosalie Pemberton Fessier filed a motion in January asking the court to dismiss the claim against the individual defendants because each is entitled to qualified immunity. The defense also asked the court to dismiss claims that the noise ordinance on its face violates the First and 14th Amendments and similar language in the state constitution.
Fessier argued Repent America failed to establish a standing in the case or prove it suffered an injury. Repent America also must show a connection between the injury and the conduct cited in the complaint, according to Fessier. The plaintiff also must show a decision in their favor would redress such injury.
Wilson's order directs the parties to confer and contact the court to schedule an evidentiary hearing within seven days of his ruling.
The judge states the court would hold under advisement Winchester's motion to dismiss the plaintiff's remaining claims as well as the plaintiff's motion for judgment on the pleadings.
