Finzer v. Barry, No. 84-5327

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, BORK; BORK; WALD
Citation798 F.2d 1450,255 U.S.App.D.C. 19
Decision Date09 September 1986
Docket NumberNo. 84-5327
Parties, 55 USLW 2128 R. David FINZER, Father, et al., Appellants, v. Marion S. BARRY, Jr., Mayor, District of Columbia, et al.

Page 1450

798 F.2d 1450
255 U.S.App.D.C. 19, 55 USLW 2128
R. David FINZER, Father, et al., Appellants,
v.
Marion S. BARRY, Jr., Mayor, District of Columbia, et al.
No. 84-5327.
United States Court of Appeals,
District of Columbia Circuit.
Argued March 20, 1985.
Decided Aug. 19, 1986.
As Amended Sept. 9, 1986.

Page 1451

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-0899).

Raymond D. Battocchi, with whom Alfred F. Belcoure, James A. Bensfield and Steven F. Korostoff, Washington, D.C., were on brief, for appellants.

Page 1452

William J. Earl, Asst. Corp. Counsel for Dist. of Col., with whom John H. Suda, Principal Deputy Corp. Counsel for Dist. of Col. and Charles L. Reischel, Deputy Corp. Counsel for Dist. of Col., Washington, D.C., were on brief, for appellees.

R. Craig Lawrence, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth, Asst. U.S. Atty., were on brief, for U.S., Washington, D.C., amicus curiae urging affirmance.

Before WALD, Chief Judge, BORK, Circuit Judge, and DAVIS, * Circuit Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge BORK.

Dissenting opinion filed by Chief Judge WALD.

BORK, Circuit Judge:

Appellants are individuals who wish to carry placards opposing the policies of the Soviet and Nicaraguan governments in front of those governments' embassies, located within the District of Columbia. In the absence of a permit, such protests are barred by D.C.Code Sec. 22-1115 (1981). That same statute authorizes police to disperse congregations in front of embassies. Appellants asserted unsuccessfully before the district court that, on its face, this law violates the first and fourteenth amendments to the Constitution. They appeal the district court's holding that the statute is constitutional and its grant of summary judgment for defendants.

The challenged statute regulates demonstrations taking place in front of foreign embassies (or buildings occupied by representatives of foreign governments) located within the District of Columbia. It contains several subsidiary provisions but for purposes of exposition it is sufficient to note its two primary features. The first makes it unlawful to "display any ... placard ... designed ... to ... bring into public odium any foreign government ... or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government" within 500 feet of that country's embassy, unless the demonstrators receive a permit to do so from the Chief of Police. The second feature makes it unlawful to "congregate within five hundred feet of any [embassy], and refuse to disperse after having been ordered so to do by the police authorities" of the District of Columbia. 1

Speaking very generally, the first part of the statute--requiring a permit for the display of a sign tending to bring a foreign government into disrepute--is primarily intended to avoid affronts to the dignity of foreign governments and their diplomatic personnel. The second feature--prohibiting "congregating"--is concerned more with threats to the security of the foreign government's representatives and property. Each of these main divisions of the statute is, of course, capable of serving both purposes mentioned. In both cases, the protection is limited to an area extending

Page 1453

500 feet from the building. In Frend v. United States, 100 F.2d 691 (D.C.Cir.1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939), this court rejected a first amendment challenge to section 22-1115 and upheld the provision's constitutionality. In issuing the judgment we review today, the district court, relying in part on Frend, reached the same conclusion. Finzer v. Barry, Civ. Action No. 84-0899 (D.D.C. May 17, 1984), Record Excerpts ("R.E.") at 62.

Our opinion is, unfortunately, quite lengthy, because in addition to presenting our analysis, it is necessary that we address the numerous and varied challenges to this statute advanced by appellants and the dissent. We hold that section 22-1115 passes constitutional muster, and we affirm the district court's holding to that effect. We remand, however, for the limited purpose of addressing appellants' claim that section 22-1115 has been enforced by local authorities against persons who were not in fact engaged in activities forbidden by the statute.

I.

Father R. David Finzer is the National Chairman of the Young Conservative Alliance of America, Inc., which he describes as "an organization of younger citizens who hold conservative views, and are dedicated to advocating and furthering those viewpoints." Declaration of Father R. David Finzer, R.E. at 15. He and three co-plaintiffs--Bridget Brooker, J. Michael Waller, and Michael Boos--initiated this action in March of 1984 against the District of Columbia, the Mayor, and the Chief of Police. The United States was granted leave to participate as amicus curiae and supported the constitutionality of the statute.

Plaintiffs' complaint and accompanying declarations state that they wish to conduct demonstrations of the sort described in D.C.Code Sec. 22-1115--they wish to carry signs critical of the Soviet and Nicaraguan governments within 500 feet of their embassies. Mr. Waller, for example, wishes to carry a sign bearing the words "Stop the Killing" in front of the Nicaraguan Embassy. Two of the plaintiffs claim to have been prevented in the past from demonstrating by uniformed police officers acting under the authority of section 22-1115. Additionally, they allege that the statute has been enforced against activity that was not in fact within its reach. Arguing that section 22-1115 abridges rights guaranteed by the first and fourteenth amendments to the United States Constitution, plaintiffs moved for summary judgment, seeking a permanent injunction against the provision's enforcement and a declaration of its unconstitutionality.

Defendants opposed this motion and filed a cross motion for summary judgment. They filed accompanying declarations from David Fields, Deputy Assistant Secretary of State for Security; Thomas D. Quinn, Special Agent in Charge of the Office of Protective Operations of the United States Secret Service; James E. Nolan, Jr., Director of the Office of Foreign Missions, Department of State; and John C. Connor, Deputy Chief of Police and Commanding Officer of the Special Operations Division of the Metropolitan Police Department in the District of Columbia. The declarations of the two State Department officials noted that the responsibility of a host state to provide appropriate protection to foreign embassies within its borders is one codified and imposed by international law, and that the degree of protection afforded by foreign governments to American diplomatic personnel abroad depends in significant part upon the protection provided by our government to foreign diplomats living in Washington, D.C. It was the considered judgment of both men that diminshing the protection provided by section 22-1115 would have a serious and adverse effect upon the relationships between the United States and many other governments and would endanger American diplomatic personnel who live and work in other countries. The other two declarants stated, on the basis of their professional experience, that section 22-1115 was necessary to the

Page 1454

continued security of foreign embassies located in Washington, D.C. They explained that the task of protecting foreign embassies presented unique security problems, because--unlike, for example, when protecting the White House, the Capitol, or the Supreme Court--American police are prohibited from entering the premises. They may do so only upon the express prior approval of the foreign government, which, for obvious reasons, will rarely be given. The 500 foot buffer zone created by section 22-1115 compensates to some degree for the absence of any American police presence inside these buildings. R.E. at 36-58.

The plaintiffs did not submit any declarations in response. Instead, they filed a Statement of Material Facts in Dispute in which they claimed that they were entitled to summary judgment even if all the defendants' declarations were accepted as true, and informed the district court that they did not wish to seek discovery at the time with respect to the factual contentions made in those declarations. R.E. at 59.

In a Memorandum Order issued on May 17, 1984, Judge Gasch granted defendants' motion for summary judgment. He held section 22-1115 to be "necessary for the protection of the personnel and property of foreign governments located in Washington, D.C." Finzer v. Barry, Civ.Action No. 84-0899, mem. op. at 3, R.E. at 64. He found that the statute served to fulfill American obligations under international law and to protect our representatives abroad, noting that "[f]ew government interests are more compelling." Id. Judge Gasch held therefore that the statute withstood the scrutiny required by the equal protection clause and relied upon the authority of Frend in rejecting the first amendment challenges.

II.

The appellants in Frend v. United States had been convicted of violating section 22-1115 by demonstrating in front of the Austrian and German embassies. Finding that there was no question that their activities ran afoul of the statute, the Frend court proceeded to examine the statute's constitutionality.

The court noted that section 22-1115 was enacted as an exercise of Congress' constitutionally vested authority to "define and punish ... Offenses against the Law of Nations," U.S. Const. art 1, Sec. 8, cl. 10, its purpose being to fulfill the United States' duty under international law "of protecting the residence of an ambassador or minister against invasion as well as against any other act tending to disturb the peace or dignity of the mission or of the member of a...

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26 practice notes
  • Town of Islip v. Caviglia
    • United States
    • New York Court of Appeals
    • May 11, 1989
    ...2898, 69 L.Ed.2d 800; Carey v. Brown, 447 U.S. 455, 462, n. 6, 100 S.Ct. 2286, 2291, n. 6, 65 L.Ed.2d 263; see also, Finzer v. Barry, 798 F.2d 1450, 1469 [Bork, J.]. Accordingly, even if Islip's ordinance is viewpoint-neutral, "strict scrutiny" is still required because "the ......
  • Olvera v. State, Nos. 666-87
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 30, 1991
    ...and only where the police reasonably believe that a threat to the security or peace of the embassy is present. Finzer v. Barry, 255 U.S.App.D.C. 19, 41, n. 17, 798 F.2d 1450, 1471, n. 17 (1986). The Court So narrowed, the congregation clause withstands First Amendment overbreadth scrutiny. ......
  • United States v. Hamdan, CMCR 09–002.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 24, 2011
    ...imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility....” Finzer v. Barry, 798 F.2d 1450, 1458–59 (D.C.Cir.1986) (citation omitted), affirmed in part and reversed in part, Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 33......
  • McCullen v. Coakley, No. 12–1168.
    • United States
    • United States Supreme Court
    • June 26, 2014
    ...that a threat to the security or peace of the embassy [was] present,’ " 485 U.S., at 330, 108 S.Ct. 1157 (quoting Finzer v. Barry, 798 F.2d 1450, 1471 (C.A.D.C.1986) ).And to the extent the Commonwealth argues that even these types of laws are ineffective, it has another problem. The p......
  • Request a trial to view additional results
26 cases
  • Town of Islip v. Caviglia
    • United States
    • New York Court of Appeals
    • May 11, 1989
    ...2898, 69 L.Ed.2d 800; Carey v. Brown, 447 U.S. 455, 462, n. 6, 100 S.Ct. 2286, 2291, n. 6, 65 L.Ed.2d 263; see also, Finzer v. Barry, 798 F.2d 1450, 1469 [Bork, J.]. Accordingly, even if Islip's ordinance is viewpoint-neutral, "strict scrutiny" is still required because "the ......
  • Olvera v. State, Nos. 666-87
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 30, 1991
    ...and only where the police reasonably believe that a threat to the security or peace of the embassy is present. Finzer v. Barry, 255 U.S.App.D.C. 19, 41, n. 17, 798 F.2d 1450, 1471, n. 17 (1986). The Court So narrowed, the congregation clause withstands First Amendment overbreadth scrutiny. ......
  • United States v. Hamdan, CMCR 09–002.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • June 24, 2011
    ...imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility....” Finzer v. Barry, 798 F.2d 1450, 1458–59 (D.C.Cir.1986) (citation omitted), affirmed in part and reversed in part, Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 33......
  • McCullen v. Coakley, No. 12–1168.
    • United States
    • United States Supreme Court
    • June 26, 2014
    ...that a threat to the security or peace of the embassy [was] present,’ " 485 U.S., at 330, 108 S.Ct. 1157 (quoting Finzer v. Barry, 798 F.2d 1450, 1471 (C.A.D.C.1986) ).And to the extent the Commonwealth argues that even these types of laws are ineffective, it has another problem. The p......
  • Request a trial to view additional results

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