714 F.Supp. 29 (D.D.C. 1989), Civ. A. 88-1048, Community for Creative Non-Violence v. Turner

Docket NºCiv. A. 88-1048
Citation714 F.Supp. 29
Party NameCommunity for Creative Non-Violence v. Turner
Case DateMay 17, 1989
CourtUnited States District Courts, District of Columbia

Page 29

714 F.Supp. 29 (D.D.C. 1989)

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs,

v.

Carmen E. TURNER, Defendant.

Civ. A. No. 88-1048.

United States District Court, District of Columbia.

May 17, 1989

Page 30

Maureen E. McGirr and Andrew T. Karron, Arnold & Porter, Washington, D.C., for plaintiffs.

Linda Lazarus, Asst. Gen. Counsel, Office of the General Counsel, Washington Metropolitan Area Transit Authority, Washington, D.C., for defendant.

MEMORANDUM OPINION

SPORKIN, District Judge.

This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiffs are Community for Creative Non-Violence ("CCNV"), The National Coalition for the Homeless, the Gray Panthers of Montgomery County, Maryland, Mitchell D. Snyder, Carol Fennelly and Brian Anders. Defendant Carmen E. Turner, is General Manager of the Washington Metropolitan Area Transit Authority (WMATA) and is the chief administrative officer responsible for all activities of WMATA. WMATA is the operating agency for a regional transportation system for the Washington, D.C., area. In early 1987, WMATA adopted a regulation that required all persons seeking to engage in "free speech activity" on WMATA property to first obtain a permit from the WMATA central business office. Plaintiffs bring the action in the instant case as a facial challenge to this regulation, alleging violation of the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiffs seek an injunction enjoining defendant from enforcing this regulation.

BACKGROUND

WMATA was created by an interstate compact entered into by Maryland, Virginia, and the District of Columbia and incorporated into the D.C. Code to act as the operating agency for a regional transportation system for the Washington, D.C., area.

On January 15, 1987, the Board of Directors of WMATA adopted a "Regulation Concerning the Use by Others of Washington Metropolitan Area Transit Authority Property." Among other things, this regulation requires that all those seeking to

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engage in "free speech activities" on publicly owned WMATA property must first obtain a permit either in person or by mail from the WMATA central business office during normal business hours. (§ 100.10(b)). "Free speech activities" are defined to include all activities that involve "the organized exercise of rights and privileges which deal with political, religious, or social matters and are noncommercial." (§ 100.7(h)).

The regulation specifically provides for its enforcement through criminal sanctions, fines, and imprisonment in accordance with local laws and ordinances should an unauthorized activity or an authorized activity in an unauthorized manner be conducted on WMATA property (§ 100.6(a) and (b)). This regulation has never been published in the District of Columbia Code, the District of Columbia Municipal Regulations, or in the District of Columbia Statutes-at-Large.

Plaintiffs in the instant case are individuals and community organizations who have either previously engaged or intend to engage in various forms of free speech activity on WMATA property. [See Plaintiffs' Complaint for Declaratory and Injunctive Relief at 8]. In a parallel criminal case, plaintiffs Snyder, Fennelly and other CCNV members were arrested and criminally prosecuted for unlawful entry as a result of allegedly violating the WMATA Regulation. See United States v. Kochol, Crim. Action No. M-13602-87 (D.C.Super Ct.) (Hamilton, J.), Appeal docketed No. 88-260 (D.C.Ct.App.1988).

In Kochol, there were two separate incidents which comprised the charge against the above plaintiffs. The first incident occurred on October 26, 1987. On that occasion, Snyder and two other CCNV members were standing on the sidewalk near the Farragut West Metro Station distributing leaflets. This area is WMATA-owned property and is part of what the WMATA Regulation classifies as the "above-ground area." The three CCNV members had failed to obtain a permit to conduct their activity as required by the WMATA Regulation. After being warned of this WMATA policy, plaintiffs refused to desist from their leafletting activity and were arrested by Metro Police officers on the charge of unlawful entry.

The second incident occurred on November 3, 1987, and involved non-compliance with the terms of a permit that four members of the CCNV had obtained to conduct a prayer vigil. On this occasion, plaintiffs Snyder and Fennelly attempted to join this activity and were advised by WMATA Transit Police that this conduct would constitute a violation of the restrictions on CCNV's permit, which limited the number of vigil participants to four persons. Plaintiffs Snyder and Fennelly were subsequently arrested for unlawful entry based on the alleged violation of the Regulation's permit requirements.

At a hearing on February 2, 1988, Judge Eugene Hamilton of the Superior Court of the District of Columbia dismissed criminal charges brought against plaintiffs arising from their arrests on October 26, 1987, and November 3, 1987. Judge Hamilton ruled the WMATA Regulation under which plaintiffs had been arrested to be overbroad and thus facially unconstitutional. This ruling is presently under appeal. At oral argument, counsel for defendant stated defendant did not consider Judge Hamilton's ruling to be binding on it and it would continue to enforce its regulation. Because of defendant's position, the court believes a case or controversy exists and that this case is ripe for decision.

STANDARD ON MOTION FOR SUMMARY JUDGMENT

To prevail on a motion for summary judgment the moving party must demonstrate that "there is no genuine issue to any material fact and that the...

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8 practice notes
  • 563 A.2d 1086 (D.C. 1989), 88-480, United States v. Powell
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 15, 1989
    ...were closed, and the governmental interest served by the gates distinguish this case from Community for Creative Non-Violence v. Turner, 714 F.Supp. 29 (D.D.C.1989). In that case the United States District Court enjoined WMATA from enforcing an unpublished regulation requiring persons who w......
  • 570 A.2d 811 (D.C. 1990), 88-244, United States v. Rothmeier
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 28, 1990
    ...invalid on its face. The trial court granted such an injunction in May 1989. Community for Creative Non-Violence v. Turner, 714 F.Supp. 29 (D.D.C.1989). [3] On Page 813 the United States Court of Appeals for the District of Columbia Circuit affirmed the injunction as applied to the permit r......
  • 729 F.Supp. 868 (D.D.C. 1989), Civ. A. 88-1048, Community For Creative Non-Violence v. Turner
    • United States
    • Federal Cases United States District Courts District of Columbia
    • May 19, 1989
    ...869 AMENDED AND SUBSTITUTED ORDER SPORKIN, District Judge. The parties have asked for clarification of the Order issued on May 17, 1989, 714 F.Supp. 29, by this Court in the above titled action. To the extent that Order requires certain clarification, I am hereby superseding that Order with......
  • 33 F.3d 1200 (9th Cir. 1994), 92-35492, Grossman v. City of Portland
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 6, 1994
    ...necessary to have one's voice heard promptly, if it is to be considered at all"); Community for Creative Non-Violence v. Turner, 714 F.Supp. 29, 33 (D.D.C.1989) (noting that the " 'built-in delay mechanism' " inherent in the challenged permit requirement "serves to deter......
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8 cases
  • 563 A.2d 1086 (D.C. 1989), 88-480, United States v. Powell
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 15, 1989
    ...were closed, and the governmental interest served by the gates distinguish this case from Community for Creative Non-Violence v. Turner, 714 F.Supp. 29 (D.D.C.1989). In that case the United States District Court enjoined WMATA from enforcing an unpublished regulation requiring persons who w......
  • 570 A.2d 811 (D.C. 1990), 88-244, United States v. Rothmeier
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 28, 1990
    ...invalid on its face. The trial court granted such an injunction in May 1989. Community for Creative Non-Violence v. Turner, 714 F.Supp. 29 (D.D.C.1989). [3] On Page 813 the United States Court of Appeals for the District of Columbia Circuit affirmed the injunction as applied to the permit r......
  • 729 F.Supp. 868 (D.D.C. 1989), Civ. A. 88-1048, Community For Creative Non-Violence v. Turner
    • United States
    • Federal Cases United States District Courts District of Columbia
    • May 19, 1989
    ...869 AMENDED AND SUBSTITUTED ORDER SPORKIN, District Judge. The parties have asked for clarification of the Order issued on May 17, 1989, 714 F.Supp. 29, by this Court in the above titled action. To the extent that Order requires certain clarification, I am hereby superseding that Order with......
  • 33 F.3d 1200 (9th Cir. 1994), 92-35492, Grossman v. City of Portland
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • September 6, 1994
    ...necessary to have one's voice heard promptly, if it is to be considered at all"); Community for Creative Non-Violence v. Turner, 714 F.Supp. 29, 33 (D.D.C.1989) (noting that the " 'built-in delay mechanism' " inherent in the challenged permit requirement "serves to deter......
  • Request a trial to view additional results