A Quaker Action Group v. Morton

Decision Date05 February 1975
Docket Number73-2190,Nos. 73-2061,s. 73-2061
Citation516 F.2d 717
PartiesA QUAKER ACTION GROUP et al. v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants. A QUAKER ACTION GROUP et al., Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Joseph L. Rauh, Jr., and Ralph J. Temple, Washington, D.C., with whom James F. Fitzpatrick, Paul R. Smollar, William A. Dobrovir, Rosalind C. Cohen, Richard E. Earle, James M. Johnstone, John G. Murphy, Jr., Tracy A. Westen, Washington, D.C., and Melvin L. Wulf, New York City, were on the brief, for appellants in No. 73-2190 and appellees in No. 73-2061.

Gil Zimmerman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry and Arnold T. Aikens, Asst. U. S. Attys., were on the brief, for appellants in No. 73-2061 and appellees in No. 73-2190. Earl J. Silbert, U. S. Atty., also entered an appearance for appellants in No. 73-2061 and appellees in No. 73-2190.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

In March, 1969, A Quaker Action Group and other plaintiffs 1 filed suit in

District Court seeking a declaratory judgment that regulations governing public gatherings in the White House area are unconstitutional, and a permanent injunction against their enforcement by the Department of the Interior. Since then, this troublesome litigation has dragged on well nigh interminably. This opinion marks the fourth appearance of the case in this court; we have previously affirmed an initial grant of preliminary injunction against the regulations, 2 and have twice reversed summary judgments and remanded the case for trial of the factual issues. 3 Now, at long last, the trial has been held, and we have before us cross-appeals from the trial judge's findings and conclusions. 4 For reasons set out below, we affirm the decision of the District Court, although with several qualifications.

I. BACKGROUND

Because the course of this litigation has been detailed in our three previous opinions, we shall merely sketch its background here, to give a frame of reference for our consideration of the decision below.

1. On August 10, 1967, the National Park Service (NPS) decided to enforce an existing, but long neglected requirement that individuals obtain a permit prior to use of National Park areas in the District of Columbia for public gatherings. 5 The Regional Director of the National Capital Parks Division communicated this determination by an internal memorandum (the "Jett Memorandum") directed to the Chief of the Park Police and to the Director of the Central National Capital Parks. 6 In the memorandum, the Park Service also announced a new internal policy of refusing permits for use of the White House sidewalk (the sidewalk on the south side of Pennsylvania Avenue between East and West Executive Avenues) by groups exceeding 100 persons, and for use of Lafayette Park by groups exceeding 500 persons. Neither of these numerical restrictions was then a part of the regulation being reactivated by the memorandum.

2. Thereafter, in the spring of 1969, the plaintiffs, five organizations wishing to hold demonstrations on the White House sidewalk or in Lafayette Park, 7 filed their action in the District Court. After an initial hearing on a request for a preliminary injunction, the District Court concluded that the numerical restrictions were not reasonably related to the achievement of substantial governmental interests, that the permit system conferred unduly broad discretion on officials to deny permit applications, and that the permit system in fact had been administered in "an arbitrary, capricious and harassing manner." 8 Accordingly, the District Court issued a preliminary injunction against enforcement of the permit requirement.

3. Quaker Action I. On appeal, we affirmed the issuance of the preliminary injunction, and ordered that the case proceed to trial expeditiously. 9 But in view of the seriousness of the governmental interests at stake, particularly the security of the President and the White House, we modified the injunction so that its protection extended to groups wishing to hold a public gathering in the White House area only if they gave the NPS at least 15 days notice of their gathering. 10 As we then noted, our modification was designed to give the government sufficient opportunity to seek a temporary restraining order against any demonstration reasonably felt to present a particular danger to the safety of the President, an opportunity the government has since invoked in some fourteen instances. 11

4. After this initial decision, and notwithstanding our order that the case proceed to trial, the District Court granted the government's motion for summary judgment, relying upon the proffered affidavits of the Director of the Secret Service and other officials as to the need to protect the President and the White House. 12

5. Quaker Action II. We reversed the summary judgment of the District Court, ruling that the plaintiffs had raised issues "deserving of further exploration by the full processes of a trial on the merits, not simply by presentation of untested affiants' statements and lawyers' arguments." 13 Accordingly, we remanded for a "hearing at which evidence, that may be tested on cross-examination, establishes the reasons for the regulatory provisions and the feasibility of others that provide satisfactory safeguards against violence with less interference with the right of peaceful protest." 14

6. The District Court again granted summary judgment for the Government. 15 This new summary disposition apparently reflected the District Judge's belief that he had been deprived of discretion to review the regulations by the Secretary's repromulgation of the regulations after a formal rulemaking proceeding. 16 The judge buttressed his decision by reference to then recent outbreaks of violence in connection with demonstration activity around the country, including the Kent State incident.

7. Quaker Action III. Again we reversed the grant of summary judgment and remanded the case for trial. 17

The opinion in Quaker Action III specifically considered the government's argument, accepted by the District Judge, that the court should accept any regulation issued by the Secretary that is both reasonable and supported by substantial evidence in an administrative record. We repeated our earlier holding that "the balancing of First Amendment freedoms against safety requirements require(s) In view of these vital (First Amendment) issues, we do not think it can be said that the validity of the regulations is established by the existence of substantial evidence in the administrative record that the Government officials had a reason for imposing a numerical restriction. The issues concerning the scope of the regulations and the need for their extent and restrictiveness are no closer to resolution now than they were when we first remanded for trial. The Secretary's reasons for re-adopting the 100/500 rule in 1970 are essentially the same as were previously adduced a letter from the Director of the Secret Service which the Secretary stated he could not re-examine, phrased in terms similar to the affidavit previously submitted to the Secretary which we previously held was the type of untested assertion that could not support a summary conclusion upholding these numerical restrictions.

the judgment of the court," 18 and went on to elaborate as follows:

. . . Of course the health and safety of the President are of concern to the citizenry. But this only poses, it does not answer, the question as to whether the officials involved have transformed this concern into an excessive preoccupation with security that is achieved at the unnecessary expense of First Amendment freedoms. We are aware that the issue is difficult and delicate. It is too difficult, too delicate, too dependent on careful assessment and weighing of constitutional rights, to rest conclusively on the untested declaration of an executive official. 19

8. After this second remand, the matter came on for trial before Judge Hart between April 23, 1973, and May 2, 1973. Testifying on behalf of the asserted security justification for the restrictions were the Director and Deputy Director of the Secret Service, the Secret Service Agent in charge of White House security, Chief Wilson of the Metropolitan Police and Deputy Chief Beye of the Park Police. In turn, the plaintiffs adduced substantial evidence concerning lack of disruptions at past demonstrations, and expert testimony about crowd behavior. The judge also received testimony and other evidence about the other asserted justification for the permit system.

After this extensive hearing the District Court reached three conclusions: (1) It affirmed the need for a permit system and approved the existing permit regulation with a single modification. (2) It found that there had been no maladministration of the permit regulation. (3) It concluded that the 100/500 limitations were too restrictive of the First Amendment interests asserted by the plaintiffs, and that "(a)ny limitations of less than 750/3,000 would be more restrictive than is essential for the furtherance of (the asserted) governmental interests . . ." (District Court Conclusion 2).

The parties have taken cross-appeals, the government objecting to the raised numerical limitations, the plaintiffs objecting both to the imposition of any numerical limitations at all and to the approval of the permit system. Presumably our opinion in this case will be referred to as Quaker Action IV; hopefully, it will be the end of the line.

II. REVIEW OF THE DISTRICT COURT DECISION
A. Basic Approach

1. As we have stressed in our prior rulings, this case is not a normal review of an...

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