Hodge v. Talkin

• Decision Date: 11 June 2013
• Docket Number: Civil Action No. 12–00104 (BAH).
• Citation: 949 F.Supp.2d 152
• Parties: Harold H. HODGE, Jr., Plaintiff, v. Pamela TALKIN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

949 F.Supp.2d 152

Harold H. HODGE, Jr., Plaintiff,

v.Pamela TALKIN, et al., Defendants.

Civil Action No. 12–00104 (BAH).

United States District Court,

District of Columbia.

June 11, 2013.

Held Unconstitutional

40 U.S.C.A. § 6135

Jeffrey Louis Light, Law Office of Jeffrey Light, Washington, DC, for Plaintiff.

Jane M. Lyons, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

Following his arrest for violation of 40 U.S.C. § 6135 for wearing a sign while standing “quietly and peacefully” on the Supreme Court plaza, the plaintiff, Harold Hodge, Jr., brought this lawsuit to challenge the constitutionality of that statute under the First and Fifth Amendments “on its face and as applied to his desired activities,” which include returning to the Supreme Court plaza to “engage in peaceful, non-disruptive political speech and expression.” Amended Complaint (“Am. Compl.”), ECF No. 8, ¶¶ 1, 20, 28. The defendants—Pamela Talkin, Marshal of the United States Supreme Court, and Ronald Machen, Jr., U.S. Attorney for the District of Columbia, in their official capacities—have moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, they have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(a). Defs.' Mot. to Dismiss or in the Alternative, for Summ. J. (“Defs.' Mot.”), ECF No. 14. For the reasons explained below, the defendants' motion is denied because the Court finds the challenged statute unconstitutional under the First Amendment. Summary judgment will therefore be entered for the plaintiff pursuant to Federal Rule of Civil Procedure 56(f). ¹

I. BACKGROUND

The plaintiff, as noted, has been arrested for violating the statute he now challenges on constitutional grounds. Set forth below is pertinent factual and legal background to evaluate his claim and the pending motion.

A. The Plaintiff's Protest and Arrest at the Supreme Court Plaza and Subsequent Prosecution

The plaintiff, Harold Hodge, Jr., is a citizen of Maryland and a full time-student at the College of Southern Maryland. Am. Compl. ¶ 5. According to the Amended Complaint, the plaintiff, on January 28, 2011, visited the Supreme Court plaza (“the plaza”) wearing a sign “approximately 3 feet long and 2 feet wide” that read: “The U.S. Gov. Allows Police To Illegally Murder and Brutalize African Americans And Hispanic People.” Am. Compl. ¶¶ 17–20. The plaintiff states that his purpose in standing on the plaza and wearing the sign “was to engage in expression on a political matter of public interest and importance and to raise public awareness about the adverse treatment of minorities by law enforcement.” Am. Compl. ¶ 18. According to the plaintiff, he “approached the Supreme Court building from the west ... and ... proceed[ed] up the steps leading up to the plaza in front of the Supreme Court building.” Am. Compl. ¶ 19. Once there, the plaintiff “stood quietly and peacefully upon the plaza area near the steps leading to the sidewalk in front of the Supreme Court Building, approximately 100 feet from the doors of the main entrance leading into the Supreme Court Building.” Am. Compl. ¶ 20. After standing there for a few minutes, the plaintiff was approached by an officer of the Supreme Court of the United States Police, who “informed Mr. Hodge that he was violating the law and ... told [him] to leave the plaza.” Am. Compl. ¶ 21. After the plaintiff was given three warnings, and refused to depart, the officer told the plaintiff “that he was under arrest for violating 40 U.S.C. § 6135.” Am. Compl. ¶¶ 22–23. The plaintiff “was told to place his hands behind his back, and he peacefully and without resistance complied with this request.” Am. Compl. ¶ 23. The plaintiff was “then handcuffed and taken to a holding cell within the Supreme Court building [and then] transported to U.S. Capitol Police Headquarters where he was booked and given a citation for violating 40 U.S.C. § 6135.” Am. Compl. ¶ 24.

On February 4, 2011, the plaintiff was charged in an information filed in the Superior Court for the District of Columbia by the U.S. Attorney for the District of Columbia with violating 40 U.S.C. § 6135. Am. Compl. ¶ 25. The information alleged specifically that the plaintiff “ ‘did unlawfully parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to [sic] display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.’ ” Am. Compl. ¶ 25 (quoting Information). The plaintiff and the government reached an agreement, pursuant to which the charge under 40 U.S.C. § 6135 would be dropped if the plaintiff stayed away from the Supreme Court Building and grounds for six months. Am. Compl. ¶ 26. The plaintiff complied with the agreement, and, on September 14, 2011, the charge under 40 U.S.C. § 6135 was dismissed. Am. Compl. ¶ 27.

B. The Instant Lawsuit

On January 23, 2012, the plaintiff filed this lawsuit challenging the constitutionality of 40 U.S.C. § 6135.² The plaintiff claims that he “desires to return to the plaza area ... and engage in peaceful, non-disruptive political speech and expression in a similar manner to his activity on January 28, 2011.” Am. Compl. ¶ 28. He also “desires to return to the plaza area in front of the Supreme Court building and picket, hand out leaflets, sing, chant, and make speeches, either by himself or with a group of like-minded individuals.” Am. Compl. ¶ 29. Specifically, the plaintiff is interested in “convey[ing]” a “political message,” “directed both at the Supreme Court and the general public,” namely to “explain how decisions of the Supreme Court have allowed police misconduct and discrimination against racial minorities to continue.” Am. Compl. ¶ 29. He claims, however, that he is “deterred and chilled from doing so because of the terms of 40 U.S.C. § 6135 and his prior arrest on January 28, 2011 and subsequent prosecution for violating that statute.” Am. Compl. ¶ 30. The Court held argument on the pending motion on April 26, 2013, and, following that hearing, both parties, with the permission of the Court, supplemented their briefing regarding issues raised at the motions hearing.³See Defs.' Supplemental Brief (“Defs.' Supplemental Br.”), ECF No. 19; Pl.'s Supplemental Opp'n to Defs.' Mot. to Dismiss or in the Alternative for Summ. J. (“Pl.'s Supplemental Opp'n”), ECF No. 20.

C. The Challenged Statute—40 U.S.C. § 6135

The challenged statute, 40 U.S.C. § 6135, provides in full that:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

40 U.S.C. § 6135. The statute is comprised of two clauses: first, the “Assemblages Clause,” which provides that “[i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds,” and, second, the “Display Clause,” which makes it unlawful “to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” 40 U.S.C. § 6135. The plaintiff was charged with violating both clauses of the statute. See Am. Compl. ¶ 25.

The Court's “Building and grounds” referenced in the statute include the Supreme Court Building as well as the grounds extending to the curbs of four streets, namely “the east curb of First Street Northeast, between Maryland Avenue Northeast and East Capitol Street[,]” “the south curb of Maryland Avenue Northeast, between First Street Northeast and Second Street Northeast[,]” “the west curb of Second Street Northeast, between Maryland Avenue Northeast and East Capitol Street[,]” and “the north curb of East Capitol Street between First Street Northeast and Second Street Northeast[.]” 40 U.S.C. § 6101(b)(1). Violations of section 6135, which may be prosecuted in the United States District Court for the District of Columbia or the Superior Court of the District of Columbia, are subject to a fine or imprisonment for “not more than 60 days, or both[,]” except if “public propertyis damaged in an amount exceeding $100, the period of imprisonment for the offense may be not more than five years.” 40 U.S.C. § 6137(a)-(c).

D. History of the Challenged Statute

A review of the history of the challenged statute and the case law addressing its constitutionality is necessary to set the plaintiff's instant challenge in context. The statute was enacted in 1949 and originally codified at 40 U.S.C. § 13k. The bill introducing the statute was “patterned very largely after the law which authorized special guards to police the Capitol grounds.” S. Rep. No. 81–719, 1949 U.S.C.C.A.N. 1827, 1828 (1949). Thus, the Court first briefly examines the statute promulgated to govern the policing of the Capitol grounds, 40 U.S.C. § 193g.

1. Statute Governing Capitol Grounds, 40 U.S.C. § 193g⁴

From 1810 until 1935, the Supreme Court was housed in the United States Capitol Building. See Architect of the Capitol, Old Supreme Court Chamber, http:// www. aoc. gov/ capitol- buildings/ old- supreme- court- chamber (last visited June 10, 2013). During that period, in 1882, Congress enacted legislation “to regulate the use of the Capitol Grounds,” then including the Supreme Court, and “to prevent the occurrence near it of such disturbances as are incident to the ordinary use of public streets and places[.]” 22 Stat. 126 (1882); see also 13 Cong. Rec. 1949 (1882) (statement of Morrill) (stating that the bill to regulate the use of the Capitol Grounds was necessary because “[c]onstant damage is committed on the Capitol, pieces of the bronze doors are stolen, ink is strewed from the bottom to the top of the stairs, plants are stolen from...