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March 9, 1976

AVRAHAM SHIFRIN et al., Plaintiffs,
JERRY WILSON et al., Defendants and Third-Party Plaintiffs, v. RAPHAEL PERL, Third-Party Defendant

The opinion of the court was delivered by: RICHEY


 I. Background

 The instant action is brought by plaintiffs Avraham Shifrin, a citizen of the State of Israel, and Abraham Bloom, who was, at the time of the filing of the amended complaint in this case, Chairman of the Washington Area Peace Action Coalition and a member of the Executive Committee of the Washington Area Impeachment Coalition. Defendants are the District of Columbia, the Corporation Counsel for the District, certain assistants to the Corporation Counsel, the Chief of Police for the District, and three other members of the Metropolitan Police Department. As more fully explained below, the case is currently before the Court on a variety of cross-motions for summary judgment as to certain defendants and related aspects of the case.

 The incident which gave rise to the case at bar took place in the District of Columbia nearly three years ago: plaintiff Shifrin had planned to deliver a public address in front of the Russian Embassy on February 9, 1973, but his presentation was curtailed when members of the Metropolitan Police Department arrested him for violation of Article II, § 3 of the Police Regulations of the District of Columbia, which requires that a permit be obtained from the Chief of Police in order to deliver any speech in a public space in the District. As a result of this incident, plaintiffs Shifrin and Bloom brought this suit seeking: a) a declaration that the regulation in question is unconstitutional, and b) related injunctive relief. Plaintiff Shifrin also seeks money damages for the alleged deprivation by defendants of his first, fourth and fifth amendment rights. Jurisdiction in this case is provided by 28 U.S.C. § 1331(a). *fn1"

 The essential facts are as follows: On February 9, 1973, at approximately 4:00 p.m., plaintiff Shifrin went to the Soviet Embassy near Sixteenth and M Streets N.W., in the District of Columbia for the purpose of delivering an address to persons assembled in front of the Embassy. Shifrin planned to speak on the topic of the conditions in Soviet prison camps, in several of which he had been incarcerated for ten years. Also present at the Embassy at that time was a detail of officers from the Metropolitan Police Department (MPD) under the command of defendant Captain J.C. Connor. The detail had been dispatched to the scene to monitor the anticipated activities. Before Shifrin began to speak, defendant Connor informed him and his attorney Raphael Perl that Mr. Shifrin could not give a speech without a permit as required by Article II, § 3 of the police regulations. *fn2" Connor handed a copy of the regulation in question to Shifrin and Perl, and further discussion ensued. Shifrin eventually decided to ignore Connor's admonition and attempted to deliver his speech. As a result he was placed under arrest, escorted to a nearby scout car without incident and taken to the Second Police District, where, within about one hour, he was processed and released upon posting of ten dollars collateral. On March 20, 1973, the Office of the Corporation Counsel of the District of Columbia dropped all charges against Shifrin. The next day, March 21, 1973, the Corporation Counsel issued a legal opinion in which Article II, § 3 was found to be too broad to withstand first amendment challenge.

 The issuance of the opinion of the Corporation Counsel was the culmination of another series of events which is also important to the case at bar. This chain of events began on December 8, 1971, when, in the case of A Quaker Action Group v. Wilson, C.A. No. 70-2915 (D.D.C.), Judge Gesell held Article VI, §§ 1 and 3 of the police regulations to be unconstitutional. Based on the reasoning in Judge Gesell's opinion, a conclusion was reached among attorneys in the office of the General Counsel of the MPD that the regulation at issue in the instant case (hereinafter, the "speech regulation") was also likely to be held unconstitutional, if challenged. Accordingly, on May 1, 1972, the Deputy General Counsel of the MPD, Kenneth Crosson, requested an opinion from the defendant Corporation Counsel as to the constitutionality of the speech regulation. The request was originally routed to Assistant Corporation Counsel Gilbert Gimble; then, before Gimble had done any work on the request, it was re-routed in September of 1972 to Assistant Corporation Counsel David Eisenberg. The latter did not perform any work on the request until early March, 1973. Upon completing a draft of an opinion shortly thereafter, Eisenberg forwarded the draft to defendant Murphy, the Corporation Counsel, on March 14, 1973. Murphy revised the opinion and issued it, as previously mentioned, on March 21, 1973. On April 10, 1973, defendant Police Chief Jerry Wilson issued an MPD circular instructing all officers that, in accordance with the Corporation Counsel's opinion, the speech regulation was no longer to be enforced.

 As mentioned above, both plaintiffs seek declaratory and injunctive relief with respect to the speech regulation, and plaintiff Shifrin also seeks damages for deprivation of his first, fourth and fifth amendment rights. The gravamen of Shifrin's complaint against the MPD officers is that they either knew or had a responsibility to know that the speech regulation was, under a long line of judicial precedent, unconstitutional, and that the arrest of Shifrin pursuant to the regulation was therefore unlawful and a deprivation of his constitutional rights. Shifrin's complaint against defendant Wilson is that he failed to use his powers to prevent enforcement of the regulation while the request for an opinion from the Corporation Counsel was pending, and he likewise failed to expedite the issuance of the opinion, all despite the fact that he knew the regulation was likely to be viewed as unconstitutional by the Corporation Counsel. Shifrin alleges that these failures led directly to his arrest and, therefore, a deprivation of his constitutional rights. Shifrin's complaint against defendant Murphy and members of his office is that their negligence in the conduct of their duties caused an unreasonable delay from the time an opinion on the speech regulation was first requested (May, 1972) until the time that it was issued (March, 1973). That negligence, according to Shifrin, also led directly to a deprivation of his constitutional rights. Finally, Shifrin charges the District of Columbia with direct liability for the alleged deprivation of his constitutional rights because of its failure to properly supervise its employees, and with vicarious liability for the wrongs of its employees.

 In the motions currently before the Court, plaintiffs have moved for summary judgment against the District on their claim for declaratory judgment and injunctive relief and for partial summary judgment against defendants Wilson, Murphy, and the District on the issue of the liability of each for the alleged unlawful deprivation of Shifrin's constitutional rights. Defendants have moved for summary judgment in favor of defendants Connor, Wilson, Murphy, and the District. For the reasons which follow, this Court grants declaratory relief, denies injunctive relief, and denies all motions for summary judgment.

 II. The Constitutional Issues

 The linchpin of plaintiffs' action is their contention that the speech regulation in question is clearly unconstitutional under a long line of Supreme Court authority. Before turning to the merits of that contention, this Court must consider several preliminary matters.

 A. There is no necessity for a three-judge court.

 Under 28 U.S.C. § 2281, a three-judge court must be convened when a litigant challenges on constitutional grounds and seeks injunctive relief against enforcement of a state statute or an administrative order issued pursuant to such a statute. Under 28 U.S.C. § 2282, a three-judge court is also required for a challenge to an act of Congress on constitutional grounds in which injunctive relief against the enforcement of the act is sought. While none of the parties have requested a three-judge court in this case, in which a speech regulation is challenged on constitutional grounds and an injunction against its enforcement is requested, it is nonetheless the Court's duty to consider whether 28 U.S.C. § 2281 or 28 U.S.C. § 2282 applies, since the three-judge court acts are jurisdictional. McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S. Ct. 1365, 43 L. Ed. 2d 699 (1975).

 In order to determine whether a three-judge court is required in the instant case, it is first necessary to determine whether the District of Columbia police regulation at issue was promulgated pursuant to a "state" statute or to an act of Congress. The distinction is important, for, while an administrative order of statewide effect promulgated pursuant to a state statute is subject to 28 U.S.C. § 2281, *fn3" an order promulgated pursuant to an act of Congress is not subject to the three-judge court requirement of 28 U.S.C. § 2282 unless the constitutional challenge to such an order also goes to the validity of the act itself. National Student Association v. Hershey, 134 U.S. App. D.C. 56, 412 F.2d 1103, 1124 n.56 (1969); Hoffman v. Department of H.U.D., 519 F.2d 1160, 1163-64 (5th Cir. 1975); see generally William Jameson & Co. v. Morgenthau, 307 U.S. 171, 173-74, 83 L. Ed. 1189, 59 S. Ct. 804 (1939). At the time pertinent to the case at bar, the District of Columbia Council had the authority, pursuant to 1 D.C. Code § 224 to make and modify police regulations for the MPD. *fn4" Case law has established the proposition that District of Columbia Code provisions are acts of Congress and not state statutes for purposes of the three-judge court acts, and that 28 U.S.C. § 2282 is therefore the applicable three-judge court provision in cases involving D.C. Code statutes. Shapiro v. Thompson, 394 U.S. 618, 625 n.4, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Police Officers Guild v. Washington, 369 F. Supp. 543, 549-50 (three-judge court, D.D.C. 1973); see Doe v. Martin, 404 F. Supp. 753 (three-judge court, D.D.C. 1975) (three-judge court Notice of January 30, 1975). *fn5" The regulation at issue is not itself an "act of Congress," but was promulgated pursuant to such an act. 1 D.C. Code Ann. § 224 (1973). It is, accordingly, not subject to the requirements of 28 U.S.C. § 2282. National Student Association, supra; Keyes v. Madsen, 86 U.S. App. D.C. 24, 179 F.2d 40, 43 (1949), cert. denied, 339 U.S. 928, 94 L. Ed. 1349, 70 S. Ct. 628 (1950); see A Quaker Action Group v. Wilson, C.A. No. 70-2915 (D.D.C. Dec. 8, 1971). *fn6"

 B. The constitutional question is not moot; plaintiffs possess the requisite standing to maintain this action.

 Defendants allege that plaintiff's request for declaratory and injunctive relief is moot because defendant Wilson has already distributed a circular instructing MPD officers that, in light of the Corporation Counsel's opinion on the speech regulation, the regulation should no longer be enforced. The test for determining mootness which defendants must meet is whether there is any "reasonable expectation that the wrong will be repeated." United States v. W. T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). *fn7" The Court has concluded that defendants have not met their burden.

 The Court turns first to the case of Machado v. Department of Health and Rehabilitative Services, 357 F. Supp. 890 (three-judge court, S.D.Fla. 1973). In Machado, plaintiffs challenged the constitutionality of a certain state statute. Defendants claimed that plaintiffs' application for declaratory and injunctive relief was moot because: a) an identically-worded subsection of another statute had already been held unconstitutional in an earlier case; b) the statute in question had not been invoked since that time; and c) the statute was regarded by state government officials as a "dead letter." The court held that since the provision in question was clearly unconstitutional, "we should eliminate the possibility of it being used [in the future]." 357 F. Supp. at 892. "[The] statute has not been repealed; the 'public interest' requires the Court to lay to rest any 'continuing force' the statute possesses." Id. at 893.

 The facts of the instant action present a much stronger case than Machado for declining to find plaintiffs' request for declaratory and injunctive relief moot. Plaintiffs have pointed out that, although the regulation is no longer being enforced by the MPD, it remains available to several federal law enforcement agencies authorized to enforce local police regulations. See 3 U.S.C. § 202 (Executive Protective Service); 40 U.S.C. § 193t (special police for the Smithsonian Institution and National Gallery of Art); 36 C.F.R. §§ 50.3(a), 50.5(c) (National Park Police). Defendants have not responded to plaintiffs' point, and the Court can only assume that no policy against the enforcement of the speech regulation has been formulated by officials of the federal law enforcement agencies involved. Thus, in accordance with the Machado reasoning and especially in light of the apparent continued vitality of the regulation, the Court finds that plaintiffs' request for declaratory and injunctive relief is not moot. *fn8"

 But even if this Court declined to accept the reasoning set forth above, there is another independent compelling reason why the request for declaratory and injunctive relief is not moot. Shifrin's damages claim is contingent upon a finding by the Court that the speech regulation is unconstitutional; for, the crux of Shifrin's damages allegations is that the various defendants were responsible for the enforcement of an unconstitutional regulation and, thereby, a deprivation of his constitutional rights. Shifrin's situation is therefore much like that of former Congressman Adam Clayton Powell in the case of Powell v. McCormack, 395 U.S. 486, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969). In Powell, plaintiff sued for various forms of relief, including a declaration that Congress had acted in an unconstitutional manner in failing to seat him as a member of the 90th Congress. By the time the case reached the Supreme Court, the 90th Congress had terminated and Powell had been seated as a member of the 91st Congress. While this turn of events rendered certain aspects of his case moot, live issues remained, including whether Powell was entitled to back pay for Congress' allegedly unconstitutional action in excluding him. A determination of his entitlement to back pay was obviously contingent upon a determination of the constitutionality of Congress' action; the Supreme Court therefore decided the constitutional issue. In the same manner, this Court must decide the constitutional issue in order to make possible a decision on Shifrin's damages claim.

 The same quality which makes this case a "live" controversy also provides sufficient standing for plaintiff Shifrin to seek declaratory and injunctive relief; it seems axiomatic that if Shifrin's claim for damages is contingent upon a finding that the regulation in question is unconstitutional, he has standing to maintain a challenge to that regulation. Accordingly, it is unnecessary for this Court to reach at this time the issue raised by defendants of Bloom's standing to maintain the request for declaratory and injunctive relief. *fn9"

 C. The speech regulation is unconstitutional.

 In A Quaker Action Group v. Wilson, C.A. No. 70-2915 (D.D.C. Dec. 8, 1971), Judge Gesell held unconstitutional certain District of Columbia police regulations which prohibited the use of sound amplification equipment in public places without a permit obtained from the Chief of Police. Judge Gesell found the regulations facially invalid because "they contain absolutely no standards for this exercise of police discretion." In striking down the sound amplification regulations, Judge Gesell acted in accordance with a long line of Supreme Court authority establishing the proposition that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional [on its face]." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969); see also, e.g., Staub v. City of Baxley, 355 U.S. 313, 2 L. Ed. 2d 302, 78 S. Ct. 277 (1958); Niemotko v. Maryland, 340 U.S. 268, 95 L. Ed. 267, 71 S. Ct. 325 (1951); Saia v. New York, 334 U.S. 558, 92 L. Ed. 1574, 68 S. Ct. 1148 (1948); Schneider v. State, 308 U.S. 147, 84 L. Ed. 155, 60 S. Ct. 146 (1939); Hague v. CIO, 307 U.S. 496, 83 L. Ed. 1423, 59 S. Ct. 954 (1939); Shuttlesworth, supra, 394 U.S. at 151 n.2 (collecting cases); OD v. Wilson, 323 F. Supp. 76 (three-judge court, D.D.C. 1971). As one commentator has noted:

"Within this framework, the major doctrine that bears upon the form of permit systems stems from the rules against vagueness and overbreadth. It holds that the standards by which a permit is to be granted, denied, or shaped must be sufficiently detailed and specific so that the officials administering the system are not given uncontrollable authority. The Supreme Court laid down this rule in Lovell v. Griffin, the first case in which it considered a permit system, and has reiterated it on numerous occasions . . . ." T. Emerson, The System of Freedom of Expression 372 (1970).

 Defendants do not argue with the basic proposition asserted by plaintiffs and contained in the Supreme Court cases cited above. Defendants suggest, however, that this Court could and should salvage this regulation by giving it a narrow construction which would uphold its constitutionality. In support of their position, defendants draw the Court's attention to the case of District of Columbia v. Edgcomb, 305 A.2d 506 (D.C. App. 1973), in which the District of Columbia Court of Appeals rendered a saving construction to a local traffic regulation involving processions and parades.

 To be sure, statutes should be construed, whenever possible, so as to uphold their constitutionality. United States v. Vuitch, 402 U.S. 62, 68, 28 L. Ed. 2d 601, 91 S. Ct. 1294 (1971). "But there are bounds beyond which it is not appropriate for courts to go in this regard, at least without exposing themselves to the charge that they are usurping the legislative function." Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575, 587 (three-judge court, D.D.C. 1972). In the instant case, if this Court were to create the missing standards out of whole cloth, it would obviously be engaging in a function properly left to lawmakers. *fn12" See A Quaker Action Group v. Wilson, supra. The situation might be different if this Court had the benefit of a prior narrowing construction of the regulation by the local courts, similar perhaps to the construction of the traffic regulation rendered by the District of Columbia Court of Appeals in Edgcomb, supra. Compare Cox v. New Hampshire, 312 U.S. 569, 85 L. Ed. 1049, 61 S. Ct. 762 (1941) and Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942), with Brandenburg v. Ohio, 395 U.S. 444, 449, 23 L. Ed. 2d 430, 89 S. Ct. 1827 n.3 (1969). But the regulation has not, to the Court's knowledge, been interpreted by the District of Columbia courts. In any case, this Court would be reluctant to save a regulation which restricts "pure speech," i.e. rights entitled to more protection than those restricted by the provisions at issue in, for example, Edgcomb, supra, and Cox, supra. See Cox, supra, 312 U.S. at 573.

 For all of the above reasons, the Court declines to render a saving construction and instead will issue a declaratory judgment of even date herewith finding the regulation facially unconstitutional. *fn13"

 D. Injunctive relief would be inappropriate in the instant case.

 III. Liability of Defendant Connor

 The issue of the liability of defendant John Connor, who was an MPD captain at the time of the occurrence of the events which gave rise to this action, is currently before the Court on defendant's motion for summary judgment. Plaintiffs have not filed a cross motion for summary judgment as to Connor; rather, they merely oppose granting summary judgment.

 The statements of facts, affidavits, depositions, and other submissions by the parties reveal that it was Connor who decided to invoke the speech regulation. When plaintiff Shifrin failed to produce a permit and proceeded with his address, Connor ordered one of the officers in his detail to arrest Shifrin.

 The gist of plaintiffs' complaint against Connor is that he either knew or should have known that the speech regulation was unconstitutional under a long line of Supreme Court authority. Consequently, plaintiffs argue, Connor's actions constituted an unwarranted deprivation of Shifrin's first, fourth, and ...

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