Police in Winchester, Va., have documented in affidavits for a lawsuit how they decided to get evidence on a Christian street preacher then dispatched an officer undercover to take video of the man's faith statements on public streets during a local festival.

"I made a video recording of the individuals using the amplification device, a true and accurate copy of which is attached hereto," Sgt. Robert Bower testified via affidavits in a lawsuit over the city's alleged attempt to silence the street preacher during the May 2010 Apple Blossom Festival.

Police Chief Kevin Sanzenbacher explained he had been contacted by street preacher Michael Marcavage with questions about the city's noise ordinance and discussed the ordinance with him.

Find out what's going on here and now, in "Shut Up, America!: The End of Free Speech"

Then, the chief said, "Concerned that Mr. Marcavage was intent on accusing my department of violating his constitutional rights in the future, I had Sgt. Robert Bower patrol undercover and record any encounters between my department and Mr. Marcavage so as to confirm that no one in my department violated Mr. Marcavage's rights."

Marcavage, of the Repent America Christian ministry, regularly preaches the message of the Bible at street festivals and other occasions across the country.

He recently won a court dispute over his street preaching on public property outside the display of the Liberty Bell.

In Philadelphia, the 3rd U.S. Circuit Court of Appeals overturned the convictions for violating a demonstration "permit" and "interfering" with National Park Service operations at the popular tourist attraction.

Marcavage was taking part in a street-preaching event there in 2007 in which he advocated protecting the lives of the unborn.

The court said while some time and place speech restrictions are constitutional, they need to serve a "compelling interest," and the "government chose not to submit evidence."

"We hold that the government impermissibly infringed Marcavage's First Amendment right to free speech," the ruling said about the Philadelphia situation.

The affidavits in the Winchester case were submitted in a lawsuit that did result over the conflict between Marcavage and police that day one year ago.

The case is being handled by the Rutherford Institute, where President John W. Whitehead said the circumstances of a police department dispatching undercover officers to record citizens on the streets should be a concern.

"Winchester's citizens should be alarmed by the fact that police are sending undercover agents to record people expressing their religious beliefs," he said.

Bower's statement confirmed that he was "assigned" to record "any encounters between officers and Mr. Marcavage."

The chief said in his affidavit that he gave permission for Marcavage to continue using the amplification but said an officer would have to assess the volume should there be further complaints, a story that differs from the lawsuit's narration of events.

The lawsuit alleges that three officers told Marcavage he "must cease and desist using his amplification equipment."

"At no time did [Lt. John Danielson] or the two other police officers suggest that Plaintiff Marcavage might comply with the noise ordinance by reducing the volume of the amplification device, nor did they request that he do so," it says.

The complaint alleges the chief affirmed a single complaint is enough for police to act to require someone to "desist using" a sound device."

Its First Amendment claim was filed last November over the officers' decision to shut down Marcavage's preaching, with the use of a small speaker, because of a city ordinance that prohibits sounds that "annoy" or "disturb" others.

The case challenges the constitutionality of the ordinance.

Officers had ordered Marcavage to shut down after a passerby complained he felt "uncomfortable" with the message, according to the lawsuit.

Sanzenbacher earlier had assured Marcavage the noise ordinance permitted the use of microphones and amps, and based on the information, he took to the streets, along with several other Christian evangelists at the festival, the lawsuit said.

Marcavage eventually continued his preaching that day but "under threat of citation should another person complain, " the Rutherford Institute said.

Marcavage also recently came into conflict with authorities at the University of Pennsylvania when they arrested him for preaching on a public walk in front of a mosque in Philadelphia.

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