Lederman v. U.S.

• Citation: 131 F.Supp.2d 46
• Decision Date: 05 March 2001
• Docket Number: No. CIV.A. 99-3359(RWR).,CIV.A. 99-3359(RWR).
• Parties: Robert LEDERMAN, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 46

131 F.Supp.2d 46

Robert LEDERMAN, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. CIV.A. 99-3359(RWR).

United States District Court, District of Columbia.

March 5, 2001.

Neal Goldfarb, Oblon, Spivak, McClelland, Maier & Neustadt, Arlington, VA, for Robert Lederman.

Marina Utgoff Braswell, U.S. Attorney's Office, Washington, DC, for U.S., U.S. Capitol Police, Gary L. Abrecht, Lawrence Louthery, Charles McQuay.

Thomas L. Koger, Office of Corporation Counsel, D.C., Office of the Administrator, Washington, DC, for District of Columbia.

Eugene A. Adams, III, Counsel of the District of Columbia, Thomas L. Koger, Office of Corporation Counsel, D.C., Office of the Administrator, Washington, DC, for Robert Rigsby.

MEMORANDUM OPINION

ROBERTS, District Judge.

Plaintiff, an artist and president of an organization called Artists' Response to Illegal State Tactics ("A.R.T.I.S.T."), challenges the validity of an amended Capitol Grounds Regulation that created a no-demonstration zone within the 250-foot perimeter of the United States Capitol building. He also seeks to recover damages for his 1997 arrest pursuant to the original regulation. In an Opinion issued on March 14, 2000, I held the original regulation to be unconstitutional on its face and permanently enjoined its enforcement. See Lederman v. United States, 89 F.Supp.2d 29 (D.D.C.2000). The federal defendants¹ have moved for reconsideration as to the public forum aspect of that ruling, or in the alternative, for clarification as to the specific United States Capitol Grounds areas which constitute a traditional public forum for First Amendment purposes. Because I remain unpersuaded by the federal defendants' arguments that plaintiff was arrested in a non-public forum, I will deny their motion for reconsideration. I will, however, clarify that, to reach my decision, I need have concluded only that the sidewalk in front of the Capitol steps, on which plaintiff was arrested in 1997 and on which he intended to demonstrate in 1999, constitutes a traditional public forum.

Two days after I issued the March 14, 2000 ruling, the Capitol Police Board amended the Capitol Grounds Regulation. Plaintiff has amended his complaint to challenge the amended regulation. The federal defendants (hereinafter, "defendants") have moved to dismiss, or in the alternative, for summary judgment on plaintiff's amended complaint. Plaintiff has cross-moved for summary judgment on his claim for declaratory and injunctive relief as to the amended regulation, and for partial summary judgment as to liability on his damages claims against the federal defendants.² Because I find that the amended regulation is reasonably related to the purpose of the enabling statute, but is not narrowly tailored to further a significant governmental interest, and that plaintiff has established viable damages claims as to certain constitutional torts, parties' cross-motions for summary judgment will be granted in part and denied in part. As in my March 14, 2000 ruling, I also will issue a declaratory judgment invalidating the offending regulatory language on its face as contrary to the First Amendment and permanently enjoin its enforcement.

BACKGROUND

The factual circumstances that initially gave rise to this action are set forth in detail in the March 14, 2000 Memorandum Opinion, Lederman, 89 F.Supp.2d at 30-34. On March 11, 1997, plaintiff was arrested by two Capitol Police officers, Loughery and McQuay, while peacefully leafleting and holding a small sign on a sidewalk immediately in front of the House steps at the south end of the Capitol building. A District of Columbia Superior Court Hearing Commissioner dismissed the charges against plaintiff on November 30, 1998, holding that the Capitol Grounds Regulations under which plaintiff had been arrested, Article XIX, Capitol Grounds Regulation § 158(a), was unconstitutional both on its face and as applied to plaintiff's free speech activity. Plaintiff, who intended to leaflet in the same area in March 1999, brought his initial suit to preliminarily and permanently enjoin enforcement of the Capitol Grounds Regulation and to recover damages for his 1997 arrest.³

The specific Capitol Grounds Regulation at issue in the first case created a no-demonstration zone within the 250 foot perimeter of the Capitol building. This regulation imposed an outright ban on the following types of activities within the zone:

[P]arading, picketing, speechmaking, holding vigils, sit-ins, or other expressive conduct that conveys a message supporting or opposing a point of view or has the intent, effect, or propensity to attract a crowd or onlookers, but does not include merely wearing Tee shirts, buttons, or other similar articles of apparel that convey a message.

Article XIX, Capitol Grounds Regulation § 158(a).

On cross-motions for partial summary judgment, I held that the creation of a no-demonstration zone around the Capitol was within the Police Board's statutory authority to enact. See Lederman, 89 F.Supp.2d at 33-35. I went on to hold, however, that the Capitol Grounds Regulation could not "pass muster under the far more exacting standards of the First Amendment." Id. at 35, 41-42. In reaching that conclusion, I first found that defendants had failed to rebut the presumption that the sidewalk on which plaintiff was arrested in 1997 was a traditional public forum for First Amendment purposes. Id. at 35-37. I then held that the Capitol Grounds Regulation was not a "reasonable time, place, and manner" restriction because, although the regulation left open ample alternative channels of expression, the portion of the regulation under which plaintiff was arrested in 1997 was not narrowly tailored to serve a significant government interest. Id. at 37-42.

In conducting my narrow tailoring inquiry, I first observed that the Capitol Grounds Regulation, via § 158(a)'s definition of "demonstration activity," banned "three general categories of activity within 250 feet of the Capitol: (1) `parading, picketing, speechmaking, holding vigils, sit-ins'; (2) `other expressive conduct that conveys a message supporting or opposing a point of view'; and (3) other expressive conduct that `has the intent, effect, or propensity to attract a crowd or onlookers[.]'" Id. at 39 (quoting Article XIX, Capitol Grounds Regulations § 158(a)). I then held that plaintiff's leafleting fell into the second, and most expansive, category of banned speech (i.e., speech that constituted "other expressive conduct that conveys a message supporting or opposing a point of view"). Id. Accordingly, my analysis focused on that portion of the regulation. Although I agreed with the federal defendants that the Capitol Grounds Regulation left open adequate alternative channels of expression, I nevertheless concluded, after analyzing relevant Supreme Court and D.C. Circuit precedent, that such a broadly-worded prohibition on speech within a traditional public forum was "antithetical to the narrow tailoring demanded by the First Amendment." Id. at 42. Accordingly, I struck down on its face the Capitol Grounds Regulation's ban on "other expressive conduct that conveys a message supporting or opposing a point of view" within the 250-foot radius of the Capitol and permanently enjoined future enforcement of that provision of the regulation.

On March 16, 2000, two days after my ruling, the Capitol Police Board amended § 158(a)'s definition of demonstration activity (hereinafter, the "amended regulation"). The amended regulation became effective on March 30, 2000. The following changes were made, inserting the bolded language and dropping the stricken language:

[P]arading, picketing, leafleting, speechmaking, holding vigils, sit-ins, or other expressive conduct or speechmaking that conveys a message supporting or opposing a point of view and or has the intent, effect, or propensity to attract a crowd or onlookers, but does not include merely wearing Tee shirts, buttons, or other similar articles of apparel that convey a message.

Article XIX, Capitol Grounds Amended Regulation § 158(a). The amended regulation alters the definition of prohibited demonstration activity in three ways. First, it adds leafleting to the list of specifically prohibited activities included in the first category of speech proscribed under the original regulation. Second, by changing the disjunctive "or" to the conjunctive "and," the amended regulation merges the second and third categories of speech into a catch-all provision banning "other expressive conduct" that both "conveys a message supporting or opposing a point of view" and "has the intent, effect or propensity to attract a crowd or onlookers." Third, the amended regulation removes the specific ban on "speechmaking" from category one and incorporates it into the new catch-all provision.

Soon after notice of the amended regulation was published, plaintiff amended his complaint to assert that the new definition of "demonstration activity" was unconstitutional. (Am.Compl. ¶¶ 1, 11, 33-36.) To establish his standing to bring such a challenge, plaintiff stated that he intends to return to Washington in the future to leaflet in the current no-demonstration zone. (Id. ¶ 36.) Plaintiff also broadened his allegations about the types of activities in which he intends to engage, characterizing it as "constitutionally-protected demonstration activity ... including, but not necessarily limited to, leafleting and holding signs." (Id.) The amended complaint retains those counts of the original complaint which sought damages for his 1997 arrest.

Aside from the federal defendants' request that I reconsider or clarify my earlier ruling, defendants have moved for summary judgment on all counts of plaintiff's amended complaint. Plaintiff has cross-moved for partial summary judgment. Specifically, he seeks summary judgment on Counts I and II of his amended complaint, which challenge the...