Community for Creative Non-Violence v. Kerrigan, N-VIOLENCE

• Decision Date: 17 January 1989
• Docket Number: NON-VIOLENCE,No. 87-5236,N-VIOLENCE,87-5236
• Citation: 865 F.2d 382
• Parties: COMMUNITY FOR CREATIVE, et al., Appellants, v. Frank A. KERRIGAN, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 382

865 F.2d 382

275 U.S.App.D.C. 163

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellants, v. Frank A. KERRIGAN, et al.

No. 87-5236.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 11, 1988.

Decided Jan. 17, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-03271).

John A. Ragosta, with whom Myles V. Lynk and Gerald M. Rosberg were on the brief, for appellants.

Michael L. Martinez, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellees. Michael J. Ryan, Asst. U.S. Atty., also entered an appearance for appellees.

Before EDWARDS and WILLIAMS, Circuit Judges, and REYNOLDS, ^* Senior District Judge.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The dispute in this case arose when the appellants, Community for Creative Non-Violence and their spokesperson, Mitch Snyder, (collectively, "CCNV"), sought to engage in a round-the-clock vigil on the United States Capitol Grounds to protest the plight of the homeless, using a 500-pound clay statue of a man, woman and child huddled over a steam grate. Following review of an application from the appellants for permission to demonstrate on the Capitol Grounds, the Capitol Police Board issued a seven-day, renewable permit, authorizing the vigil and use of the statue. However, pursuant to section 156(a)(2) of the Traffic and Motor Vehicle Regulations for the United States Capitol Grounds ("Capitol Grounds Regulations"), the permit stated that "[a]ll approved Props and Equipment shall not remain within the Capitol Grounds for more than 24 consecutive hours each day." Joint Appendix ("J.A.") 6.

CCNV argued that the 24-hour restriction would effectively prevent use of the statue, because it could not be disassembled and then reassembled on a daily basis. When the Board refused to alter the terms of the permit, CCNV filed suit in district court seeking a permanent injunction against the application of section 156(a)(2). The District Court denied CCNV's request and this appeal ensued. Because we find that the regulation was validly enacted and is a reasonable time, place or manner restriction, we affirm.

I. BACKGROUND

Under 40 U.S.C. Sec. 212b (1982), the Capitol Police Board and its current Chief, Frank A. Kerrigan, ¹ (collectively, "the Board"), have authority to make and enforce all rules and regulations governing the movement of vehicular and other traffic within the area constituting the U.S. Capitol Grounds. In 1976, the Board adopted regulations requiring permits for demonstrations on the Capitol Grounds and setting out rules governing the issuance of those permits. See Capitol Grounds Regulations Secs. 153-159. One of the provisions governing the issuance of demonstration permits, section 156(a)(2), states:

No permit shall be issued for a period of more than 7 consecutive days, and no permit shall authorize demonstration activity having a duration of more than 24 consecutive hours....

On November 19, 1986, the appellants applied to the Board for a permit to serve Thanksgiving dinner on the Capitol Grounds to homeless people in the area, to hold a round-the-clock vigil, and to set up a "modern day creche" on the Grounds, consisting of a statue of a man, woman and child huddled over a steam grate. The statue is entitled "Third World America" and bears the caption: "AND STILL THERE IS NO ROOM AT THE INN." ² CCNV planned to continue the vigil with the statue, and to serve dinner nightly to the homeless, until Congress passed emergency legislation to provide funding for the homeless or until the winter ended on March 21, 1987, whichever came first.

After the parties discussed the proposed activities, the Board granted the appellants a seven-day, renewable permit to hold the vigil, to use the statue in conjunction with the vigil, and to serve dinner on Thanksgiving Day, November 27. The Board selected the location for the vigil and the placement of the statue. The permit was granted for the period from November 27 through December 3, but stated that "[a]ll approved Props and Equipment shall not remain within Capitol Grounds for more than 24 consecutive hours each day." J.A. 6. This restriction was included in order to comply with section 156(a)(2). The Board agreed that the restriction could be satisfied simply by taking a few minutes once every twenty-four hours to move the props to the sidewalk and back. Nonetheless, the requirement effectively prohibited CCNV from using the statue in the vigil, because the statue weighs approximately 500 pounds, is very fragile, and is quite difficult to move, requiring over two hours to dismantle and reassemble.

The appellants filed suit on November 26, 1986, seeking injunctive relief preventing application of section 156(a)(2) to their demonstration. Two days later, following a hearing, District Court Judge Penn, sitting as motions judge, issued a temporary restraining order prohibiting the Board from applying the 24-hour rule to the statue. CCNV v. Carvino, 648 F.Supp. 476 (D.D.C.1986). The appellants subsequently amended their complaint to allege that, in addition to violating the First Amendment, the regulation was not validly promulgated.

On December 17, 1986, following additional hearings on the parties' cross-motions for summary judgment, District Court Judge Oberdorfer denied the appellants' motion for a preliminary injunction. CCNV v. Carvino, 654 F.Supp. 827 (D.D.C.1987). The statue was eventually removed from the Capitol Grounds in mid-January 1987. ³ Up to this time, the appellants con tinued to apply for and receive seven-day renewals of their permit.

On May 11, 1987, the District Court granted the appellees' motion for summary judgment, finding that the regulation was validly promulgated and was a reasonable time, place or manner restriction. CCNV v. Carvino, 660 F.Supp. 744 (D.D.C.1987). CCNV appealed.

II. ANALYSIS

A. Statutory Authority

The appellants first contend that section 156(a)(2) is ultra vires because it regulates matters outside of the Board's statutory authority. In promulgating section 156(a)(2), the Board relied on its authority to regulate traffic under 40 U.S.C. Sec. 212b (1982). That statute provides:

The Capitol Police Board ... shall have exclusive charge and control of the regulation and movement of all vehicular and other traffic ... within the United States Capitol Grounds; and said Board is authorized and empowered to make and enforce all necessary regulations therefor....

The appellants argue that section 156(a)(2) is not authorized by section 212b because the regulation does not address any traffic-related interests. ⁴

To be valid, a regulation must be " 'reasonably related to the purposes of the enabling legislation.' " Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973) (quoting Thorpe v. Housing Auth., 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969)). The Board concedes that its statutory authority under 40 U.S.C. Sec. 212b is limited to the regulation of traffic. Thus, regardless of the legitimacy of the interests served by section 156(a)(2), the regulation is not within the Board's authority unless it is reasonably related to traffic-related interests.

There are no sources contemporary to the enactment of the regulation to aid us in discerning the purposes of the regulation. However, in an affidavit submitted to and relied on by the District Court, ⁵ George M. White, the current Architect of the Capitol and a member of the Capitol Police Board in 1976 when section 156(a)(2) was promulgated, stated that the Board had five principal goals in mind in adopting the regulation: (1) to guard against the appearance of congressional sponsorship; (2) to avoid the addition of permanent structures on the Capitol Grounds; (3) to promote the free flow of traffic; (4) to keep the forum open to others; and (5) to aid the Capitol Police in keeping day-to-day control over the Capitol Grounds. Affidavit of George M. White at 2-4, CCNV v. Carvino, No. 86-3271 (D.D.C. filed Dec. 10, 1986) ("Affidavit"); see 660 F.Supp. at 748. The appellants claim that the first two of these interests are unrelated to traffic and that the remaining three, while traffic-related, are not served by section 156(a)(2).

We agree with the appellants that the Board's interest in guarding against the appearance of congressional sponsorship is completely unrelated to the Board's authority to regulate traffic. Similarly, the Board's second goal, avoiding permanent structures on the Capitol Grounds, is by the Board's own admission "essentially an aesthetic and planning interest." Brief for Appellees at 24. ⁶ Although prevention of permanent structures could conceivably have traffic-related justifications, any such justifications overlap with the three remaining interests advanced by the Board--promoting the free flow of traffic, keeping the forum open for others, and preserving day-to-day control over the Capitol Grounds. Accordingly, we need not consider separately whether the interest in avoiding the addition of permanent structures is rationally related to the Board's authority to regulate traffic.

These remaining three interests, however, are clearly legitimate traffic-related interests within the scope of the Board's authority under section 212b. CCNV does not argue otherwise; rather, it contends that these interests are not served by the 24-hour rule.

Like the appellants, we have some question whether the 24-hour rule promotes the free flow of traffic. The rule does not preclude the use of demonstration props or equipment and, as Judge Penn noted, "it was the [appellees] who selected the location for placement of the sculpture, and presumably, they did so having in mind the free flow of traffic." 648 F.Supp. at 478-79...