Oberwetter v. Hilliard

• Citation: 639 F.3d 545
• Decision Date: 17 May 2011
• Docket Number: No. 10–5078.,10–5078.
• Parties: Mary Brooke OBERWETTER, Appellantv.Kenneth HILLIARD, U.S. Park Police, and Kenneth Lee Salazar, Secretary, U.S. Department of Interior, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

639 F.3d 545

Mary Brooke OBERWETTER, Appellant
v.
Kenneth HILLIARD, U.S. Park Police, and Kenneth Lee Salazar, Secretary, U.S. Department of Interior, Appellees.

No. 10–5078.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 14, 2011.Decided May 17, 2011.

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Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–00588).Alan Gura argued the cause for appellant. With him on the briefs was Candice N. Hance.

[639 F.3d 548]

Harry B. Roback, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.Opinion for the Court filed by Circuit Judge GRIFFITH.GRIFFITH, Circuit Judge:

Late on the eve of the 265th birthday of Thomas Jefferson—Author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and Father of the University of Virginia—Officer Kenneth Hilliard of the United States Park Police arrested plaintiff Mary Brooke Oberwetter when she refused to stop what she describes as “silent expressive dancing” inside the Jefferson Memorial. She filed suit against Hilliard and the government alleging violations of her First and Fourth Amendment rights. The district court dismissed her complaint. For the reasons that follow, we affirm.

I

At quarter to midnight on April 12, 2008, Oberwetter and seventeen friends entered the Jefferson Memorial to “celebrate and honor the former President ... by ushering in his birthday with silent dance.” ¹ Appellant's Br. 4. According to Oberwetter, the dancing expressed admiration for Mr. Jefferson's political legacy. “In the individualist spirit for which Jefferson is known, the dancers danced for the most part by themselves, in place, each listening to his or her music on headphones.” Compl. ¶ 13. The dancing took place inside the Memorial, a circular structure with a domed roof and colonnaded perimeter. “Apart from [Oberwetter] and her associates, and employees of the National Park Service, there were very few visitors to the Jefferson Memorial at the time of the dancing.” Id. ¶ 15.

A group of United States Park Police officers ordered the dancers to disperse. Oberwetter states that she did not immediately comply but removed a headphone from one ear and asked Officer Hilliard “why he was ordering her to leave, and what law she was violating.” Id. ¶ 18. Hilliard offered no explanation, but continued to insist that she stop dancing and leave immediately. Rather than complying, Oberwetter again asked Hilliard to “provide a lawful reason why she needed to do so,” but he “refused to offer any reason whatsoever for his demands, and instead arrested [her].” Id. ¶ 19. Oberwetter further alleges that Hilliard “used more force than was necessary ..., ripping apart her earbud, shoving her against a pillar, and violently twisting her arm.” Id. ¶ 21. The Park Police took her into custody for some five hours of processing, after which they cited her for “[i]nterfering with an agency function” in violation of 36 C.F.R. § 2.32 (prohibiting “[t]hreatening, resisting, intimidating, or intentionally interfering with a government employee or agent engaged in an official duty, or on account of the performance of an official duty”).

Three days later, Park Police officers visited Oberwetter's home and gave her

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two superseding citations—one for “interfering with an agency function,” and another for “[d]emonstrating without a permit” in violation of the National Park Service Regulations. See 36 C.F.R. § 7.96(g)(3)(ii)(C). On May 21, 2008, Oberwetter appeared before the district court to defend the charges. According to her complaint, the court found that “the prosecution ... was not properly before the Court and advised ... Hilliard that if he wished to proceed, he would have to properly prepare the matter for hearing.” Compl. ¶ 25. The Park Police have not pressed the matter since.

Oberwetter subsequently filed this suit, arguing that Hilliard's enforcement of the Park Service Regulations to prohibit her expressive dancing violated her First Amendment rights to free speech and assembly. She sought injunctive and declaratory relief, stating that she “would again silently dance at the Jefferson Memorial to commemorate Thomas Jefferson's birthday, by herself, and with other like-minded people, but refrains from doing so because she reasonably fears arrest, prosecution, fine, and/or incarceration if she were to do so again.” Id. ¶ 26. She also brought three Bivens claims for money damages against Hilliard in his personal capacity, alleging violations of her First and Fourth Amendment rights.

The district court dismissed Oberwetter's complaint for failure to state a claim, holding that she was lawfully arrested for violating the reasonable regulations that govern the Jefferson Memorial, a nonpublic forum reserved for the tranquil commemoration of Mr. Jefferson's legacy. Oberwetter v. Hilliard, 680 F.Supp.2d 152 (D.D.C.2010). The court further held that Hilliard had probable cause to make the arrest, and that he used reasonable force to subdue Oberwetter without injury after she twice refused his lawful orders. We take jurisdiction pursuant to 28 U.S.C. § 1291, reviewing the district court's dismissal de novo. See Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C.Cir.2008). In reviewing a dismissal for failure to state a claim, “we must treat the complaint's factual allegations as true, must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged, and may uphold the dismissal only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Shea v. Rice, 409 F.3d 448, 450 n. 2 (D.C.Cir.2005) (citation omitted).

II

As a threshold matter, Oberwetter contends that the National Park Service misread its own regulations in treating her expressive dancing as unlawful. Ordinarily, we “accord an agency's interpretation of its own regulations a high level of deference, accepting it unless it is plainly wrong.” Howmet Corp. v. EPA, 614 F.3d 544, 549 (D.C.Cir.2010) (internal quotation marks omitted). Here, however, because the Park Service's interpretation of its regulations could lead to criminal sanctions against Oberwetter, our deference is constrained by the need to ensure that she had fair warning. See United States v. McGoff, 831 F.2d 1071, 1077 (D.C.Cir.1987) (“In the criminal context, courts have traditionally required greater clarity in draftsmanship than in civil contexts, commensurate with the bedrock principle that in a free country citizens who are potentially subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be visited upon them.”); see also Rollins Envtl. Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 654 (D.C.Cir.1991). We are satisfied that the Regulations give fair notice that

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expressive dancing is prohibited inside the Jefferson Memorial.

The Regulations provide that, within the park areas of the National Capital Region, “[d]emonstrations and special events may be held only pursuant to a permit....” 36 C.F.R. § 7.96(g)(2). “Demonstrations” include:

picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. [The] term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.

Id. § 7.96(g)(1)(i).²

Oberwetter argues that her silent expressive dancing was not a demonstration because it was not “like” the enumerated activities of “picketing, speechmaking, marching, [or] holding vigils or religious services.” Id. § 7.96(g)(1)(i). Unlike those examples, she argues, her expressive dancing was not an “organized group activity in which a uniform message is passionately conveyed.” Appellant's Br. 15. She further claims that her conduct falls within the exception for “casual park use.” Id. Dancing silently in place while listening to headphones, she says, is something that people do in the course of ordinary activity—waiting for the bus, standing on the sidewalk, etc.—and does not have the “effect, intent or propensity to draw a crowd or onlookers.” 36 C.F.R. § 7.96(g)(1)(i).

The district court properly rejected Oberwetter's arguments. Under the Park Service Regulations, a demonstration need not be an “organized group activity,” but may consist of “one or more persons.” Id. Oberwetter's expressive dancing falls within the spectrum of examples of prohibited activities, which range from “the boisterousness of picketing or speechmaking to the quiet solicitude of a vigil.” Oberwetter, 680 F.Supp.2d at 161. Although silent, Oberwetter's dancing was a conspicuous expressive act with a propensity to draw onlookers. True, it occurred close to midnight on a weekend, making it less likely that a crowd would gather. But the question is not whether her dancing was likely to attract attention at that particular time. As with the other prohibited activities of “picketing, speechmaking, marching, [and] holding vigils or religious services,” expressive dancing might not draw an audience when nobody is around. But the conduct is nonetheless prohibited because it stands out as a type of performance, creating its own center of attention and distracting from the atmosphere of solemn commemoration that the Regulations are designed to preserve.

Taking another tack, Oberwetter argues that even if she engaged in a demonstration inside the Memorial, she was free to do so because her group of silent dancers was never larger than 18 people. The Regulations allow for groups of 25...