Mahoney v. U.S. Capitol Police Bd.

Decision Date22 February 2022
Docket NumberCivil Action No. 21-2314 (JEB)
Citation566 F.Supp.3d 1
Parties Patrick J. MAHONEY, Plaintiff, v. UNITED STATES CAPITOL POLICE BOARD, et al., Defendants.
CourtU.S. District Court — District of Columbia

Joshua Wallace Dixon, Pro Hac Vice, Center for American Liberty, Frederick, MD, Mark Meuser, Harmeet Dhillon, Dhillon Law Group Inc., San Francisco, CA, Ronald D. Coleman, Dhillon Law Group, Inc., Newark, NJ, for Plaintiff.

Paul Cirino, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.


JAMES E. BOASBERG, United States District Judge

Given security concerns in the wake of the January 6, 2021, attack on the United States Capitol, the Government thereafter temporarily closed most of the Capitol Grounds to demonstrations. In the ensuing months, Defendant U.S. Capitol Police Board gradually eased the closures, though some restrictions remain in place, particularly for groups of 20 or more people. Enter Plaintiff Patrick J. Mahoney, a clergyman who sought to hold a prayer vigil on the West Front Lawn of the Capitol on September 11, 2021, to commemorate the twentieth anniversary of another significant attack on our country. The Government denied his permit application because the area was still closed to demonstrations, but it later clarified that Plaintiff could go forward so long as his vigil attracted fewer than 20 people. Mahoney alleges that, notwithstanding this justification, Defendants permitted several other large demonstrations on the West Front Lawn around that same time. After this Court denied Plaintiff's Motion for Temporary Restraining Order, he went forward with the vigil on the West Front Lawn on September 11 with only his wife.

Plaintiff now returns with an Amended Complaint, which challenges the Board's denial of his permit application and adds that he wants to hold large vigils on the West Front Lawn in the near future, which he still cannot lawfully do. Mahoney contends that Defendants’ conduct contravenes various provisions of the First Amendment, the Fifth Amendment, the Fourteenth Amendment, and the Religious Freedom Restoration Act. Defendants (the Board and certain individuals associated with the Board) now move to dismiss. Agreeing with the Government as to most but not all of its contentions, the Court will grant the Motion in part and deny it in part.

I. Background

The Court begins with a brief overview of the applicable regulations governing demonstrations on the United States Capitol Grounds, then turns to the facts giving rise to this suit, and concludes with the case's procedural history.

A. Applicable Regulations

"The United States Capitol Grounds extend from Union Station in the North to Virginia Avenue in the South, and from Second Street Northeast to Third Streets North- and Southwest, encompassing the Capitol itself as well as House and Senate office buildings, a power plant, press areas, and public open space." Lederman v. United States, 291 F.3d 36, 39 (D.C. Cir. 2002) ; see ECF No. 14 (Exh. A to Amended Complaint) (Traffic Regulations for the U.S. Capitol Grounds), Appx. G. Federal law charges the Board, "consisting of the Sergeant at Arms of the United States Senate, the Sergeant at Arms of the House of Representatives, and the Architect of the Capitol," Lederman, 291 F.3d at 39, with regulating the "movement of all vehicular and other traffic ... within the ... Capitol Grounds." 2 U.S.C. § 1969(a). Pursuant to this statutory authority, the Board promulgated the Traffic Regulations for the U.S. Capitol Grounds, which govern, among other things, all "Demonstrations" and "Special Events" on the Capitol Grounds. See Traffic Regulations, § 12.

The regulations define "demonstration activity" as "any protest, rally, march, vigil, gathering, assembly, projecting of images or similar conduct engaged in for the purpose of expressing political, social, religious or other similar ideas, views or concerns protected by the First Amendment of the United States Constitution." Id. § 12.1.10. They further provide that demonstration activity is generally allowed in designated areas as indicated on the United States Capitol Grounds Demonstration Areas Map, which is replicated below. Id. § 12.2.10. Within the designated areas, "[n]o person or group of less than twenty (20) persons shall be required to obtain a permit" to demonstrate. Id. § 12.3.10. Groups of 20 or more people, however, must apply for and obtain a permit in order to demonstrate there. Id. § 12.4.10. No demonstration — regardless of size — is permitted in areas that the Board designates as closed to public use. Id. § 12.2.20. Similarly, because the Board has the authority to temporarily deem an area "closed or restricted for official use," an area that is not marked as closed to demonstration on the map may nonetheless be closed to large groups, small groups, or both at a particular time based on present security risks. Id. Such closures occurred after January 6, 2021. See ECF No. 13 (Am. Compl.), ¶ 35.

In the Demonstration Map attached to the Traffic Regulations and Plaintiff's Complaint and replicated below, the unnumbered dark-shaded zones mark areas in which no demonstration activity is ever permitted, while the numbered lightly shaded zones denote areas in which groups of fewer than 20 people may demonstrate without a permit, and groups of 20 or more may do so after obtaining a permit under ordinary circumstances.

Id. Appx. G.

The Capitol Police are authorized by statute to enforce federal and District of Columbia law on the Capitol Grounds. See 2 U.S.C. § 1967(a)(4). District of Columbia Code § 22-1307(b)(1) provides, as relevant here, "It is unlawful for a person, alone or in concert with others, to engage in a demonstration in an area where it is otherwise unlawful to demonstrate and to continue or resume engaging in a demonstration after being instructed by a law enforcement officer to cease engaging in a demonstration." Violation of this law is a misdemeanor that is subject to up to 90 days’ imprisonment and a fine of $500. See D.C. Code §§ 22-1307(b)(1), 22-3571.01.

B. Factual Background

Taking the facts alleged in Mahoney's Amended Complaint as true, "[i]n response to the events of January 6, 2021," the Government erected fences around "most, if not all, of the Capitol Grounds." Am. Compl., ¶ 35. "The Capitol Grounds were surrounded by two fences — an outer fence and an inner fence — and, on information and belief, the areas surrounded by the fences were closed to pedestrian traffic and all expressive activity." Id.

In March 2021, the Board authorized the removal of the outer fence, and Areas 3, 5, 6, 12, 15–18, and 23 on the Demonstration Area Map were opened to pedestrian traffic, unpermitted demonstrations by groups of 19 or fewer, and permitted demonstrations by groups of greater than 19 but fewer than 50 people. Id., ¶ 36. In July 2021, the Board removed the inner fence. Id., ¶ 37. Area 1, which abuts the Capitol building to the west and includes the West Front Lawn, remained closed to demonstrations of any size at that time. Id., ¶¶ 36, 47.

That was the state of affairs when Plaintiff applied for a demonstration permit in July 2021. According to Mahoney, he "felt called by God to hold a prayer vigil for the United States on September 11, 2021 — the twentieth anniversary of September 11, 2001 — on the Western Front Lawn, in the shadow of the Capitol Building, where he has held similar prayer vigils in years past." Id., ¶ 45. He applied for a permit to hold such a vigil, which he believed would attract at least 20 people. Id., ¶¶ 45–46. In August, however, Plaintiff was informed that his application was not accepted because the West Front Lawn remained closed. Id., ¶ 47. Mahoney further alleges that the Government "has permitted other events on the Capitol Grounds in the recent past — including at least two (2) recent events on the Western Front Lawn." Id., ¶ 3. He thus filed this lawsuit on August 31, initially seeking, among other things, a temporary injunction requiring the Government to issue him a permit to hold his prayer vigil on September 11, 2021. See ECF No. 1 (Complaint).

On September 2, 2021 — still over a week before his proposed vigil — the Board opened Areas 1 and 8–11, including the West Front Lawn, to demonstration activity for groups of 19 or fewer. See Am. Compl., ¶ 50. The Areas remained closed, however, to larger groups. Id., ¶ 51. The Board also opened a number of other Areas to demonstrations involving groups of 20 or more, subject to obtaining a permit. Id., ¶ 50.

C. Procedural History

On the same day that Plaintiff filed this suit, he moved for a temporary restraining order and preliminary injunction directing Defendants to allow him to hold the prayer vigil (with more than 19 people) on the West Front Lawn on September 11. See ECF No. 4 (Amended Motion for TRO) at 1. After a telephonic hearing, the Court denied Mahoney's Motion on September 9, 2021. See Minute Order of Sept. 9, 2021. On September 11, Mahoney went forward with a prayer vigil on the West Front Lawn with just his wife, as he was allowed to do. See ECF No. 18 (Pl. Opp.) at 11.

He then filed a six-count Amended Complaint in November 2021, contending that Defendants violated his First Amendment rights to freedom of speech, freedom of association and assembly, and free exercise of religion; his Fifth Amendment right to due process; his Fifth and Fourteenth Amendment rights to equal protection, and the Religious Freedom Restoration Act. See Am. Compl., ¶¶ 63–122. The Amended Complaint states that Mahoney "desires to hold additional prayer vigils on the Capitol Grounds in the near future, including but not limited to vigils involving twenty (20) or more people on the Western Front Lawn, which he will be unable to hold under the Government's permitting regime." Id., ¶ 9. He seeks declaratory and injunctive relief, as well as monetary damages and attorney fees. Id. at 26–28. The...

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