847 F.2d 899 (D.C. Cir. 1988), 83-2014, Kroll v. U.S. Capitol Police

Docket Nº:83-2014.
Citation:847 F.2d 899
Party Name:Michael A. KROLL v. UNITED STATES CAPITOL POLICE, et al., Appellants.
Case Date:June 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 899

847 F.2d 899 (D.C. Cir. 1988)

Michael A. KROLL



No. 83-2014.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1988

Page 900

As Amended June 21, 1988.

Argued Jan. 27, 1988.

R. Craig Lawrence, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth, [*] Asst. U.S. Atty., Washington, D.C., were on the brief, for appellants. Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellants.

Joseph M. Sellers, with whom Judith L. Harris, Robert A. Feitel and Arthur B. Spitzer, Washington, D.C., were on the brief, for appellee.

Before ROBINSON, MIKVA and STARR, Circuit Judges.

Opinion for the Court by Circuit Judge STARR.

Opinion concurring in the judgment by Circuit Judge ROBINSON.

STARR, Circuit Judge:

This case is before us following a remand to the District Court. The issue on appeal is whether appellants are entitled on summary judgment to the protections of qualified immunity under governing Supreme Court precedent. We conclude that they are.


The facts can be briefly stated. In January 1980, the United States Senate passed a resolution authorizing a ceremony at the Capitol to welcome the Olympic Torch Relay Team, as the bearers of the Olympic Flame wended their way to Lake Placid, New York, the site of the 1980 Winter Olympics. The resolution provided in pertinent part as follows:

Resolved, That the 1980 Winter Olympics Torch Relay Team shall be honored by a welcoming ceremony on the steps of the United States Capitol Building on February 1, 1980, such ceremony shall be open to the public ... under conditions to be provided by the Capitol Police Board.

S.Res. 342, 96th Cong., 2d Sess., 126 Cong.Rec. S. 574-75 (daily ed. Jan. 29, 1980), Joint Appendix ("J.A.") at 53-56.

Pursuant to the duly publicized invitation, various members of the public responded to the call, with approximately 100 spectators in attendance. Kroll v. United States Capitol Police, 590 F.Supp. 1282, 1286 (D.D.C. 1983). Among the spectators was the appellee, Michael Kroll, who displayed a banner containing the following message:



Amended Complaint at p 14, J.A. at 59. The sign protested the anticipated ultimate use of the Olympic dormitories at Lake Placid as a federal correctional facility for youthful offenders. 590 F.Supp. at 1282.

Page 901

Captain Harry Grevey of the United States Capitol Police Department approached Mr. Kroll and inquired whether he had a permit to demonstrate. Mr. Kroll replied that he did not, whereupon Captain Grevey requested him to lower his sign. Mr. Kroll observed in response that other spectators in attendance at the ceremony were carrying signs and inquired whether those individuals possessed permits. Captain Grevey indicated that the other sign holders did not have permits, but that Mr. Kroll's sign, in contrast to the others, conflicted with the spirit of the welcoming ceremony. Mr. Kroll continued to decline either to lower his banner or to leave the ceremony. Shortly thereafter, two other officers of the Capitol Police (appellants Yaworske and Mobbs) approached Mr. Kroll and advised him once again to lower his banner. Mr. Kroll persisted in his refusal, whereupon he was arrested and taken into custody. Several hours later, he was released on his own recognizance. J.A. at 41. Charges against him were subsequently dropped. Brief for Appellee at 4.

In January 1981, Kroll filed the present action in federal district court. He claimed, among other things, that five named Capitol Police officers had violated his First Amendment rights and requested compensatory damages in the amount of $100,000 and punitive damages in the same amount. 1 On cross-motions for summary judgment, the District Court concluded that "[l]iability ... turns solely upon whether plaintiff's First Amendment rights were violated. There is no good faith or reasonableness defense." 590 F.Supp. at 1295-96. On the constitutional question, the court concluded: "Since plaintiff was unlawfully arrested while exercising First Amendment rights, he is entitled to recover damages." Id. at 1296. 2 The trial court determined that Mr. Kroll's conduct did not constitute a "demonstration" within the meaning of the applicable permit regulations. 3 In addition, the court held that the regulations were wrongfully applied to Mr. Kroll, in that he was singled out solely by virtue of the content of his message. In sum, since plaintiff did not interfere with the ceremony, "[t]he traffic regulations should not have been construed to apply to plaintiff's conduct, as such application did not comport with their intent." Id. at 1292.

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On appeal, the officers contended that the trial court erred in not upholding their claim of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), a decision which the District Court did not mention in its analysis. In the officers' view, their conduct comported fully with the strictures of the First Amendment, in that they had merely enforced in straightforward fashion a permit system which had never been held unconstitutional. In any event, they further asserted, their conduct fell well within the ambit of Harlow 's reach, inasmuch as their actions with respect to Mr. Kroll did not constitute the violation of a "clearly established" right within the meaning of Harlow. Following oral argument, this court remanded the record to the District Court for a statement of reasons for its determination that qualified immunity was unavailing.

On remand, the District Court reiterated the fact of the unconstitutional nature of appellants' actions and that it was clearly established in law that content-neutral enforcement was indispensable to the lawful administration of a permit system, 683 F.Supp. 824. In this case, the court reiterated, the Capitol Police singled out Mr. Kroll's banner solely on account of the content of its message. Since content discrimination is at the core of forbidden governmental action, the District Court concluded that Harlow immunity would not lie.


At the outset, it is important to recognize what this case is not about. Under Harlow and its progeny, defendants' entitlement to qualified immunity raises only a narrow question. We need not resolve, therefore, the extent to which the First Amendment allows the arrest of lone demonstrators who--on the basis of the signs they carry--are perceived by police as not belonging to a group that has secured a demonstration permit. Rather, the sole issue on this appeal is whether this aspect of First Amendment law was so "clearly established" at the time of the Olympics ceremony that a reasonable police officer faced with Kroll's behavior would not have thought it lawful to arrest him. 4 We turn, then, to the particular facts that are relevant to the qualified immunity inquiry.

In the first place, this record shows unmistakably that the event in question--the welcoming ceremony for the Olympic Torch Relay Team--was conducted under the auspices of a specific Senate Resolution. That resolution by its terms referred to a specific event to be conducted under conditions to be provided by the Capitol Police Board. Under these circumstances, a reasonable officer would conclude, in our view, that the activity in question was in the nature of an event carried on within the ambit of the Capitol Police Board permit system. The Senate Resolution would not have been taken to portend the temporary suspension of Congress' permit system--conveying an invitation to the public generally to come to the site of the welcoming ceremony for reasons other than to welcome the Relay Team. The Senate Resolution would, in short, reasonably have been viewed by the Capitol Police as the functional equivalent of a permit. 5 That is particularly true in light of the oddity of having the United States Senate "apply" for a permit from its own Police Board. The Capitol Police could

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reasonably believe that the Senate, like the House, could "trump" the operation of its own permit system, which by its nature applies to those outside the Capitol Hill community of Members of Congress (and their staffs).

Once this basic point is appreciated, the remainder of the proper analysis under Harlow and its progeny becomes clear. See Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In light of the state of First Amendment law in 1980, the five officers in 1980 could reasonably have concluded that the very existence of a permit system carried with it the principle of exclusivity. Judgments about the message being conveyed by a particular demonstrator, 6 a reasonable officer could have concluded, are inherent in the implementation of a permit system. Otherwise, the Capitol Police would have been authorized to issue permits, but do nothing when counterdemonstrators chose to intrude into the area of the "permitted" activity and carry on their efforts to communicate a different (or indeed possibly conflicting) message. To take a familiar example, pro-choice or anti-abortion pickets may not constitutionally be forbidden an opportunity to communicate their respective messages simply by virtue of their nature or content; but the Capitol Police could, we believe, reasonably have concluded that they could lawfully direct an anti-abortion picketer away from the area set aside under a permit to those communicating a pro-choice viewpoint (or vice versa ).

Our Harlow analysis does not, as might be thought at first blush, compromise the timeless First Amendment principle of content neutrality. Governmental neutrality as to content stands at the heart of the First Amendment's protections against the powers of government. That, in large measure, is what the Free Speech Clause is all about.


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