Mahoney v. District of Columbia

Decision Date30 September 2009
Docket NumberCivil Action No. 09-105 (ESH).
Citation662 F.Supp.2d 74
PartiesPatrick MAHONEY et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
CourtU.S. District Court — District of Columbia

James Matthew Henderson, Sr., American Center for Law and Justice, Carly F. Gammill, Washington, DC, for Plaintiffs.

Thomas Louis Koger, Office of the Attorney General, Washington, DC, for Defendants.



Plaintiffs Reverend Patrick Mahoney, Kaitlin Mahoney Martinez, the Christian Defense Coalition, Survivors of the Abortion Holocaust, and Cheryl Conrad bring this action against defendants District of Columbia ("District"), Chief of the Metropolitan Police Department ("MPD") Cathy L. Lanier, and unidentified MPD officer "John Doe."1 Plaintiffs allege that defendants' refusal to permit them to engage in "chalk art" demonstrations on the pavement of the 1600 block of Pennsylvania Avenue in front of the White House violated the First, Fourth, and Fifth Amendments to the U.S. Constitution; the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.; and the District of Columbia First Amendment Rights and Police Standards Act of 2004 ("FARPSA"), D.C. Law 15-352 (2005) (codified at D.C.Code § 5-331.01, et seq.). Before the Court is defendants' motion to dismiss the complaint or, in the alternative, for summary judgment and plaintiff's opposition thereto. For the reasons set forth below, defendants' motion will be granted.


In late 2008, plaintiffs began preparations for a January 24, 2009 demonstration on the paved pedestrian promenade segment of the 1600 block of Pennsylvania Avenue, N.W., directly between the White House and Lafayette Park ("the 1600 Block promenade"), to protest President Obama's position on abortion and to protest the anniversary of the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). (See Am. Verified Compl. ("Compl.") ¶¶ 51-55, 57-60 [Dkt. 14]; Pls.' Mot. for TRO and Prelim. Inj. ("TRO Mot.") [Dkt. 4], Decl. of Rev. Patrick Mahoney ("Mahoney Decl."), Attach. 1 ("1st Henderson Letter") at 1; Defs.' Mot. to Dismiss the Complaint or, in the Alternative, for Summ. J. ("Mot.") [Dkt. 17], Statement of Material Facts ("Defs.' SMF") ¶ 1.) This particular portion of Pennsylvania Avenue is under the jurisdiction of the District of Columbia, while the National Park Service ("NPS") has jurisdiction over the adjacent White House sidewalk and Lafayette Park. (NPS Opp'n to TRO Mot. ("NPS TRO Opp'n") [Dkt. 9] at 1.) In addition, NPS is responsible, pursuant to an agreement with the District, for maintaining and repairing the 1600 Block promenade. (Id.; see also id., Decl. of Ann Bowman Smith ("Smith Decl.") ¶ 5 & Ex. B.)


In the District, expressive assemblies are regulated by the "First Amendment Assemblies" subchapter of FARPSA and related regulations. See generally D.C.Code §§ 5-331.01 to -331.17; D.C Mun. Regs. tit. 24, §§ 705-706, 711-712. Section 5-331.03 of the D.C.Code declares that it is the District's policy to permit "First Amendment assemblies"i.e., those conducted for social, political, and religious expression—"on the streets, sidewalks, and other public ways," subject to "reasonable restrictions designed to protect ... property...." D.C.Code § 5-331.03; see also id. § 5-331.02(1) (defining "First Amendment assembly"). Except in three exempted situations, assembly organizers must give notice to the MPD and seek advance approval for their event so that the District can coordinate the use of public spaces by multiple groups and facilitate the allocation of police protection and other municipal assistance to assembly participants. Id. § 5-331.05(b)-(d). However, it is not an offense to assemble without having received advance approval. Id. § 5-331.05(a).

FARPSA requires the MPD to "recognize and implement" the policy announced in § 5-331.03 "when enforcing any restrictions" on assemblies. Id. § 5-331.04(a). The MPD may impose content-neutral "reasonable time, place, and manner restrictions" on expressive assemblies in three ways: prior to an assembly through the approval of an assembly plan; during an assembly for which no plan was approved; or during an assembly whose plan had previously been approved subject to restrictions, provided that the additional restrictions satisfy one of three specified criteria. Id. § 5-331.04(b) & (c).

Although the authority to grant an assembly plan is vested exclusively with the Chief of Police or her designee, id. § 5-331.06(a)(1), the municipal regulations specify that assembly plans shall be approved if nine enumerated conditions are satisfied. D.C. Mun. Regs., tit. 24, § 706.9 ("Regulation 706.9"). In addition, the exercise of assembly plan review and approval authority is subject to timing and notice requirements. See D.C.Code. § 5-331.06(b) & (c). For example, the Chief must provide a written rationale for any limitations on the approval of an assembly plan which the applicant had previously indicated would be "objectionable." Id. § 5-331.06(c)(3). An applicant may appeal restrictions and denials of approval to the Mayor or his designee, who must "expeditiously" issue a written ruling on the appeal before the assembly's planned date and time. Id. § 5-331.06(d).


On November 24, 2008, plaintiffs notified the MPD and the Department of the Interior ("DOI") by letter of their intent to protest the Roe decision on January 24, 2009, on the 1600 Block promenade. (See 1st Henderson Letter at 1; Compl. ¶¶ 83, 92, 94; Defs.' SMF ¶¶ 1.) The letter explained that plaintiffs planned "to create a variety of verbal and visual messages, by making chalk drawings on the paved surface of Pennsylvania Avenue."2 (1st Henderson Letter at 2.) Plaintiffs' letter was received by Commander James Crane of the MPD Special Operations Division ("SOD"), whose duties and responsibilities include the issuance or denial of assembly plan approvals pursuant to FARPSA (Defs.' SMF ¶ 3), and by officials at the DOI, who communicated the information to the NPS.3 (See Smith Decl. ¶ 6.)

On January 7, 2009, Commander Crane responded to plaintiff's November 24 letter. (See TRO Mot., Mahoney Decl., Attach. 4 ("Crane Letter"); see also Compl. ¶¶ 97-98.) Crane's letter articulated the MPD's security concerns regarding the White House and requested additional information that would help the MPD fashion a permit, such as the number of anticipated participants, the starting and ending times of the demonstration, and whether plaintiffs contemplated using any sound amplification or other equipment.4 (Crane Letter at 1-2.) The letter was accompanied by a form entitled "Assembly Plan Notification/Application for Approval of Assembly Plan." (Id. at 2, 3 (attachment).) It also informed plaintiffs that chalking the 1600 Block promenade and adjacent sidewalks would constitute defacement of public property in violation of the District's criminal defacement statute, D.C.Code § 22-3312.01, as well as NPS regulations, and that the MPD did not intend "to issue a demonstration permit that could be understood to exempt organizers or any other persons from the neutral application" of the District's defacement statute. (Id. at 2.)

On January 8, 2009, Margaret O'Dell, on behalf of the NPS, sent a letter to plaintiffs that explained the agency's jurisdiction over the White House sidewalk and its maintenance responsibilities for the portion of Pennsylvania Avenue adjacent to the sidewalk. (NPS TRO Opp'n., Ex. 1 ("O'Dell Letter").) O'Dell expressed the agency's view that chalking the grounds directly in front of the White House would violate District law, as well as NPS regulations prohibiting the defacement of "cultural ... resources," 36 C.F.R. § 2.1(a)(6), and of "real property" on park lands under federal legislative jurisdiction. Id. § 2.31(a)(3) & (b). (See O'Dell Letter at 2.) O'Dell's letter also asserted that the prohibition on chalking was a reasonable time, place, and manner regulation consistent with the First Amendment. (Id. at 1-2.)

On January 9, 2009, plaintiffs responded to the MPD by letter, citing the District's past sponsorship of chalk art events on public streets in other locations and characterizing as "patently ridiculous" the refusal to permit chalking on the 1600 Block promenade. (TRO Mot., Mahoney Decl., Attach. 5 ("3rd Henderson Letter") at 4; Am. Comp. ¶ 106.) Plaintiffs' letter demanded that permission be granted for them to express their views "through the medium of sidewalk chalk" or else they would initiate litigation to compel such permission. (3rd Henderson Letter at 4.)

On January 12, 2009, Commander Crane transmitted to plaintiffs an "Assembly Plan Approval" that permitted the use of signs and banners but expressly withheld permission for sidewalk chalking:

In accordance with the provisions of the First Amendment Assemblies Act of 2004, permission is hereby granted to Rev. Patrick Mahoney to conduct a First Amendment Assembly on Saturday, January 24, 2009 from 0700 hours (assembly time), [to] 1900 hours (disbanding time), consisting of no more than 5,000 persons. You are permitted to possess signs and banners. However, there is no permission granted to use chalk or any other material to mark the surfaces of Pennsylvania Ave., N.W. (TRO Mot., Mahoney Decl., Attach. 6 ("Assembly Plan Approval") at 2 (emphasis added).) The Assembly Plan Approval also indicated that plaintiffs would need a U.S. Park Police permit in order to make any use of the White House sidewalk or Lafayette Park. (Id.)


On January 16, 2009, plaintiffs initiated this action and moved for a temporary restraining order ("TRO") and preliminary injunction, seeking to stop the District and the MPD from denying them permission to engage in "chalk...

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