SALEM — A Pennsylvania preacher who was arrested on Halloween night after defying police orders to stop using a bullhorn was found guilty of disorderly conduct yesterday and fined $200 by a judge, who said Michael Marcavage used "poor judgment" that night.
Marcavage — whose group, Repent America, has attended Halloween festivities in the city for the past four years — had insisted on the trial, after rejecting an offer from prosecutors in November to dismiss the case if he paid $100 in court costs.
He argued that Salem police violated his First Amendment rights to free speech because they didn't like what he was saying — including telling passers-by, "You're enjoying yourself tonight, but tomorrow you will die," and "You have violated the law of God."
But at the end of a three-hour, jury-waived trial, a judge disagreed.
"Halloween in Salem is a unique day of the year," said Salem District Court Judge Michael Uhlarik. "It's a very small community, and you have 60,000 to 80,000 people crammed into a very tight space. In this day and age, we have to be very careful of controlling crowds."
"It's not a question of depriving anyone of their free speech rights," said the judge. "It's an issue of public safety."
Marcavage and his lawyers, from the Alabama-based Foundation for Moral Law, vowed yesterday to appeal — and apparently have not ruled out a civil lawsuit against the city. When Uhlarik announced his decision, lawyer Alexander Matuiewicz countered with a suggestion that the case be continued without a finding in exchange for a written promise not to file a lawsuit.
Uhlarik rejected the offer and also denied prosecutor Jane Prince's request to place Marcavage, 28, on probation for a year and ban him from the city during that time.
Prosecutors had already dropped a charge that Marcavage violated a city noise ordinance, which bars the use of amplification for noncommercial speech after 10 p.m.
Complaints about tactics
Police decided that night to shut down Repent America and an anti-abortion group's use of bullhorns at 8 p.m., because of concerns about the reactions of an increasingly larger and drunker crowd — but did not shut down other organizations nearby that were using amplification, including a circus act and some musicians.
That's what touched off the confrontation between Marcavage and three Salem police officers.
After a member of the group initially stopped using the bullhorn at 8 p.m., Lt. Paul Lemelin testified that he began getting complaints about aggressive tactics by the group, including using the bullhorn close to people's faces. Lemelin said he went back over to talk to Marcavage, who had started using the device again.
Marcavage pointed out that others were using amplification, then referred to an agreement he had with the city after a prior dispute. "So you're going to violate this agreement?" Marcavage asked.
"I have no agreement with you," Lemelin told Marcavage — an exchange caught on videotape by another member of Repent America.
Lemelin testified that when he tried to take the bullhorn, Marcavage pulled it away.
On the tape, he is heard telling police his public preaching "is not illegal." Another voice is heard saying the police will have to answer to a "higher law."
Meanwhile, as Lemelin and Patrolmen Ryan Davis and Brian Butler struggled over the bullhorn, Marcavage and the patrolmen fell into the empty fountain in Town House Square.
Hostile crowd
"It had turned into a fiasco," Lemelin testified. He said people were yelling and screaming, arguing over matters of faith and then over the police response, on an already chaotic night when police were also trying to deal with a shooting and a couple of stabbings. The crowd around the officers, Lemelin testified, was becoming hostile.
Prince, the prosecutor, said police were trying to defuse an escalating situation, out of concerns about how the crowd was reacting to the group's message and approach.
Lawyer Benjamin DuPre argued that the tape shows that Marcavage and the group had not been harassing people or getting in their faces, nor were they waving crucifixes — which apparently belonged to a nearby group of Roman Catholic protesters. He argued that prosecutors had no evidence to prove that the group was being disorderly.
But the judge disagreed.
"What I saw on that tape was defiance and basically passive-aggressiveness," Uhlarik said. "It was not a good decision by your client."
He also said it appeared that police had "exhibited a good amount of discretion, respecting the rights of your client." Marcavage, said the judge, was still free to preach. And, the judge said, he's welcome back in Salem this Halloween.
Marcavage said outside court that he believes the police "took the law into their own hands" by cutting off his preaching that night and said the order to turn over the bullhorn was unlawful.
