Mahoney v. United States Capitol Police Bd.
| Decision Date | 04 April 2023 |
| Docket Number | Civil Action 21-2314 (JEB) |
| Parties | PATRICK J. MAHONEY, Plaintiff, v. UNITED STATES CAPITOL POLICE BOARD, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
After the January 6, 2021, assault on the Capitol, Defendant U.S Capitol Police Board imposed heightened restrictions upon entry on to the Capitol Grounds, many of which persist today. As most relevant here, the Board established various limitations on demonstration activity. Those limits range from crowd-size caps in certain areas to blanket prohibitions on demonstrations in others. The Board also has a policy predating January 6 that groups of over twenty people must apply for and secure a permit before demonstrating on the Capitol Grounds.
Plaintiff Patrick J. Mahoney, a clergyman who would like to hold large group vigils on the Grounds for a range of occasions, brought this suit challenging those limitations and the Board's practices as unconstitutional. He named the Board and its individual members as Defendants. After a long and winding procedural journey marked by repeated motions for preliminary injunctions and a partial dismissal by this Court of his First Amended Complaint, he returns now with his Third Amended Complaint. Defendants have moved to dismiss and, in the alternative, for summary judgment. The Court will grant the Motion to Dismiss in part, and it will deny summary judgment in full.
As the backdrop to this drama was painted in detail in an earlier Opinion, Mahoney v. U.S. Capitol Police Bd. (Mahoney I), 566 F.Supp.3d 1 (D.D.C. 2022), the Court here will take a somewhat higher-level approach, but hardly a cursory one.
It will first lay out the pre-2021 regulations governing demonstrations around the Capitol before proceeding to additional ones imposed after the January 6 insurrection.
The Board regulates traffic within the Capitol Grounds. See ECF No. 69 (3d Am. Compl.), ¶ 20. Pursuant to its statutory authority, it has promulgated a set of regulations - the Traffic Regulations - that govern, among other things, “demonstration activity” on those Grounds. Id., ¶¶ 20-21; Exh. A to 3d Am. Compl. (Traffic Regulations). Demonstration activity is “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.” Traffic Regs. § 12.1.10.
Demonstration activity is permitted in some parts of the Capitol Grounds and prohibited in others. The Regulations reference the U.S. Capitol Grounds Demonstration Areas Map, which is reproduced below, to differentiate among those areas. Id. § 12.2.10.
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Id. App'x G.
Demonstration activity is completely prohibited in areas designated “No Demonstration Permitted,” including a 250-foot buffer zone around the Capitol building. See 3d Am. Compl., ¶ 22. It is also prohibited on the steps of the Capitol and on the steps of any building on the Grounds. Id., ¶ 25. Demonstrations are permitted - though subject to some limitations - in “Demonstration Permit Areas.” Id., ¶¶ 26-27. As relevant here, the nature of those limits depends on the size of the group. Groups of fewer than twenty people may demonstrate without a permit. See Traffic Regs. § 12.3.10. Larger groups, by contrast, must secure one. Id. § 12.4.10. “The Board shall issue a permit authorizing peaceable and orderly demonstration activity upon proper and timely application.” Id. § 12.4.30. Applications for permits must be received at least ten days before the demonstration. Id. § 12.4.20.
That is not all, though. Under 40 U.S.C. § 5104(f), “a person may not (1) parade, stand, or move in processions or assemblages in the [Capitol] Grounds; or (2) display in the Grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” The President of the Senate and Speaker of the House may suspend that prohibition, however, to “allow the observance . . . of occasions of national interest.” Id. § 5106(a). The Traffic Regulations, citing § 5104(f), thus prohibit “[p]arades, assemblages and display of flags, banners or devices designed to bring into public notice a party, organization or movement” without authorization by the President of the Senate and the Speaker of the House. See Traffic Regs. § 12.1.30(a).
The Regulations do not contain criminal-enforcement provisions. See 3d Am. Compl., ¶ 31. The U.S. Capitol Police, however, are authorized to enforce federal and D.C. law on the Capitol Grounds, including, for example, § 5104(f), violation of which may be punishable by a fine and imprisonment. Id., ¶¶ 31, 34. D.C. law, moreover, makes the Regulations indirectly enforceable by rendering it unlawful 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.” Id., ¶ 32 (quoting D.C. Code § 22-1307(b)(1)). Violation of that provision is similarly punishable by a fine and imprisonment. Id., ¶ 33.
After the insurrection on January 6, 2021, security around the Capitol changed substantially and remains a topic of review. As relevant here, the Board began by erecting an outer and inner fence around the Capitol Grounds and prohibiting all demonstration activity within fenced areas. Id., ¶ 35. In late March 2021, the outer fence was removed, and the Board opened some areas to pedestrian traffic, demonstrations in groups of fewer than twenty people, and demonstrations with permits by groups between twenty and fifty people. Id., ¶ 36. In July of that year, the inner fence was also removed, although the Board did not then “formally open any additional areas to demonstration activity.” Id., ¶ 37. The result was that as of July 2021 - which is when our story begins - the only areas formally open to demonstrations were Areas 3, 5, 6, 12, 15-18, and 23 on the Demonstration Area Map. Id., ¶ 36.
Mahoney is a Presbyterian minister who would like to hold prayer vigils for various occasions on the Capitol Grounds. Id., ¶¶ 3, 46. The Board and its Traffic Regulations, however, continue to stand in his way.
His troubles began when he decided to hold a vigil on the West Front Lawn (Area 1) to commemorate the twentieth anniversary of the September 11th attacks. Id., ¶¶ 48, 51, 54. Because he expected the vigil to attract more than twenty people, he applied for a permit around July 2021. Id., ¶ 51. A month or so after he had submitted the application, the Board informed him that it would not be processing his application because the West Front Lawn was closed. Id., ¶ 52. According to Mahoney, however, that was not really the case. In the summer of 2021, the Board had allowed at least three events to occur in areas that were purportedly closed to demonstrations, including the West Front Lawn. Id., ¶ 38. First, the Board issued a permit for a 300-person rally on the West Front Lawn on July 27, 2021. Id., ¶ 39. That rally was organized by a group “seeking action by the Biden Administration against the oppressive communist dictatorship in Cuba.” Id. Second, the Board issued a permit to the group “Marked by COVID-19” for another West Front Lawn event that took place that same day and that attracted twenty or more people. Id., ¶ 40. And third, the Board allowed Representative Cori Bush to hold a large demonstration without a permit in a “No Demonstration Permitted Area.” Id., ¶ 41. The demonstration, which sought an extension of the COVID-19 eviction moratorium, was attended by “scores of people, day and night.” Id. Mahoney alleges that the Board allowed those events to go forward because, unlike his own proposed vigil, they were “sponsored, organized, or advocated for by a member of Congress (or their staff).” Id., ¶ 42 (internal quotations omitted).
The Board's refusal to process his application prompted him to file this lawsuit on August 31, 2021. Id., ¶ 56. On the same day, he moved for a temporary restraining order and preliminary injunction directing Defendants to allow him to hold the September 11th prayer vigil on the West Front Lawn. Id., ¶¶ 56-57. On September 2, 2021, before the Court could rule on the Motion, the Board reopened Area 1 (which, recall, includes the West Front Lawn) and Areas 8-11 to demonstration activity in groups of fewer than twenty. Id., ¶ 59. It also reopened a number of other areas to permitted demonstrations for larger groups. Id. A week later, this Court denied Mahoney's motion for a temporary restraining order. Mahoney I, 566 F.Supp.3d at 7. On September 11, he therefore “went forward with a prayer vigil on the West Front Lawn with just his wife, as he was allowed to do.” Id. “He then filed a six-count Amended Complaint in November 2021, contending that Defendants had 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.” Id. at 7-8. Defendants moved to dismiss.
In an Opinion issued in February 2022, this Court granted the motion in part. For now, it is sufficient to understand that the Court dismissed four of the counts in the Amended Complaint (including all religion counts) and allowed two speech counts to go forward. Mahoney v. U.S. Capitol Police Bd. (Mahoney (Good Friday 2022)), No....
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