The opinion of the court was delivered by: OBERDORFER
This case arose from the removal from sidewalks adjacent to the White House and the subsequent arrest in Lafayette Park on Inaugural Day 1973 of Edward Saffron, who was there as a pedestrian peacefully carrying a sign bearing a political-religious message similar to one he had carried in front of the White House on an almost daily basis over the previous four years. Plaintiff seeks damages against the District of Columbia, a number of officers and officials of the United States Park Service and the District of Columbia Metropolitan Police, and agents and officers of the United States Secret Service. He also prays for injunctive and declaratory relief against the official defendants heads of the Park Police, Metropolitan Police and Secret Service because they allegedly violated his constitutional rights under the First, Fourth and Fifth Amendments. Plaintiff claims defendants violated those rights by interrupting his sign-carrying on Inaugural Day, by arresting him and by failing to establish a constitutionally-valid plan to regulate expressive conduct on Inaugural Day 1973. Plaintiff claims defendants threaten to violate those rights on future Inaugural Days because they have failed to adopt any such plan for future Inaugural Days.
All defendants have moved to dismiss and for summary judgment on all issues; plaintiff filed dispositive motions against only a few defendants on several issues. To facilitate the progress of this litigation, the Court entered a number of orders resolving most of the pending dispositive motions prior to the issuance of this memorandum. In its orders of January 5 and 9, 1979, the Court granted summary judgment (1) for the eight individual Secret Service officers Rundle, Burke, Town, Jones, Shanahan, Evans, McLeod and Lau, based upon their statute of limitations defense; (2) for individual Park Police defendants Wright, Dickenson, Beye, Hill, Lindsey, Herbert, Brady, Niedringhaus and Burdick (para. 2) and Wells (para. 4), based upon immunity; and (3) for the District of Columbia defendants Wilson, Mann and McKnight, also based upon immunity. As to one party, the Court vacated its earlier order and (4) granted the motion to dismiss on behalf of decedent Arthur Lamb, named as a Park Police defendant. The Court reserved the issue of the liability of the District of Columbia, having requested further briefing in its order of January 5, 1979.
After further consideration of the statements of material facts and the replies thereto, and other statements and the arguments and admissions of counsel on the record in the context of pre-trial conference on January 9, 1979, conducted pursuant to F.R.Civ.P. 16, the Court concluded that there were no material issues of fact to be tried and requested the parties to file statements of proposed facts to which they agreed and facts to which they did not agree; order of February 2, 1979. After consideration of the briefs on that issue, as well as plaintiff's motion for reconsideration of the dismissal as to Mann, McKnight and Wilson, and the able oral arguments of counsel for the several parties, the Court concluded that no material issues of fact existed which barred entry of summary judgment for the District of Columbia on the issue of liability in damages. In its order of April 27, 1979, the Court summarized its actions subsequent to its January orders and resolved remaining outstanding motions. It (5) extended its findings of immunity, granting summary judgment for defendant Rowley, and (6) granted summary judgment for the District of Columbia on the issue of its liability in damages. Finally the Court (7) entered summary judgment for plaintiff on the issue of his entitlement to equitable or declaratory relief against the District of Columbia and against official defendants Knight, Wells and Jefferson in their capacities as heads of the Secret Service, the Park Police and the Metropolitan Police respectively.
This memorandum builds upon the joint findings submitted by the parties and sets forth the conclusions of law which underlay the Court's earlier rulings. Leaving for separate treatment matters relating solely to the defenses of immunity and the statute of limitations, Part I of the memorandum embodies general findings of fact, setting the background for the memorandum by identifying the parties (Part A), explaining the so-called Quaker Action notice system (Part B), and the Presidential Inaugural Ceremonies Act and regulations (Part C), setting forth plaintiff's compliance with the Quaker Action procedures (Part D), defendants' planning for the 1973 Inaugural (Part E), the facts relating to plaintiff's removal and arrest (Part F), and planning with respect to the 1977 and future Inaugurals (Part G).
Part II sets out the conclusions of law relating to jurisdiction and mootness (Part A) and, in the remaining sections, conclusions relating to the official defendants' liability and the remedy to which plaintiff is entitled. Because of the differing roles of the parties, liability is best analyzed by recognizing four somewhat overlapping bases for liability: (i) plaintiff's removal from the White House sidewalk; (ii) the events in Lafayette Park, including plaintiff's arrest; (iii) failure to promulgate a plan for the regulation of expressive conduct on Inaugural Day prior to Inaugural Day 1973 and (iv) failure subsequent to that day. Part B analyzes defendants' liability for plaintiff's removal from the White House sidewalk and for the failure to promulgate a plan at the time and subsequently; Part C deals with liability for plaintiff's arrest in Lafayette Park; Part D deals with the question of the District of Columbia's liability in damages for plaintiff's removal and arrest and for its role in the failure to promulgate a plan. Part E considers the propriety of the injunctive relief sought; the specific relief to which the Court concludes plaintiff is entitled is set out in Part F.
Part III embodies findings of fact and conclusions of law as to the immunity defense of the Park Police and District of Columbia individual defendants. Finally, Part IV sets forth findings and conclusions as to the statute of limitations defense of the individual Secret Service defendants. The Court reserves for separate treatment issues relating to the course and conduct of this litigation and the motions for sanctions, having concluded that such issues are not material to the Court's judgment as to defendants' substantive liability and the remedy to which plaintiff is entitled.
I. FINDINGS OF FACTS WITH RESPECT TO DEFENDANTS' VIOLATION OF PLAINTIFF'S CONSTITUTIONAL RIGHTS
1. Plaintiff Edward Saffron is a resident of the District of Columbia (Saffron dep. at 3).
3. Defendant Jerry L. Wells is the Chief of the United States Park Police; he is sued in both individual and official capacities.
4. Defendant H. Stuart Knight has been Director of the United States Secret Service since November 1973 and is sued in his official capacity only.
5. Defendant Burtell Jefferson is the Chief of the Metropolitan Police Department and is sued in his official capacity only.
6. On Inaugural Day 1973, defendant Jerry Wilson was Chief of the Metropolitan Police Department; he is sued individually.
7. On Inaugural Day 1973, defendant Russel E. Dickenson was Director of the National Parks Program.
8. On Inaugural Day 1973, defendant Grant Wright was Chief of the United States Park Police.
9. On Inaugural Day 1973, defendant Alfred Beye was Deputy Chief of the Park Service.
10. Defendant Arthur Lamb, now deceased, was, on Inaugural Day 1973, Chief and Acting Chief of the Division of Special Events of the National Park Service.
11. On Inaugural Day 1973, defendant James J. Rowley was Director of the United States Secret Service; he is sued individually.
12. Defendants Hill, Lindsey, Herbert, Brady, Niedringhaus and Burdick were on Inaugural Day 1973 officers of the Park Police. Defendants Hill, Lindsey and Herbert had supervisory authority over the other officers.
13. Defendant Stephen Mann was a Metropolitan Police Officer on Inaugural Day 1973; defendant Jerry McKnight was Officer Mann's immediate supervisor and was present when Mann arrested plaintiff. (Mann dep. at 11-12; McKnight dep. at 12; Ans. of def. Wilson to Interrogs., P 1, June 16, 1976; Ans. of def. District of Columbia to Interrogs., P 1, June 14, 1976).
14. The Metropolitan Police Department is responsible for enforcing the laws and ordinances of the District of Columbia in the city and has secondary responsibility in the areas of national parkland.
15. The United States Park Police is a sub-agency of the Department of the Interior and is responsible for enforcing Department of Interior regulations governing demonstrations on national parkland, including the White House sidewalk and Lafayette Park. (36 C.F.R. §§ 50.1, 50.19 (1978)).
16. As pertinent to this case, the United States Secret Service has no particular geographical area of jurisdiction. The Service has responsibility for the protection of the President and other designated domestic and foreign officials. (18 U.S.C. § 3056 (1976)).
B. The Quaker Action Notice System
17. In 1966, the Secretary of the Interior promulgated regulations requiring "an official permit" for "public gatherings", including parades, ceremonies, and demonstrations on certain parklands within the jurisdiction of National Capital Parks, National Park Service ("National Capital Parks"). The parklands subject to this permit requirement included the sidewalk on the south side of Pennsylvania Avenue, N.W., between East and West Executive Avenues ("the White House sidewalk") and Lafayette Park, a park on Pennsylvania Avenue across from the White House, and contiguous sidewalks ("Lafayette Park"). The head of National Capital Parks was delegated the authority and responsibility to act on applications for permits to demonstrate. Demonstrating without a permit subjected demonstrators to arrest by the Park Police, and imprisonment; 31 Fed.Reg. 6263 (April 23, 1966), Amended, 32 Fed.Reg. 13582 (September 28, 1967), Codified at 36 C.F.R. §§ 50.5, 50.19 (1968).
19. (a) In March 1969, a lawsuit was filed in the United States District Court for the District of Columbia challenging the constitutionality of the regulations and asserting that the permit system had been administered in an arbitrary and capricious way to harass would-be demonstrators and to deny permit applications without adequate justification. The lawsuit has become known as the Quaker Action case after the name of one of the plaintiffs. The defendants in Quaker Action included the Secretary of the Interior, the Director of the National Park Service, and the head of National Capital Parks; Quaker Action I, supra, 137 U.S.App.D.C. 179-180, 421 F.2d at 1114-15.
(b) In April 1969, the District Court granted the plaintiffs' request in Quaker Action for a preliminary injunction against enforcement of the permit regulations pending a determination of the merits of the case. Under this injunction, the head of National Capital Parks was prevented from requiring an official permit for demonstrations; Quaker Action I, supra, 137 U.S.App.D.C. at 178, 184, 421 F.2d at 1113, 1119; A Quaker Action Group v. Morton, 170 U.S. App. D.C. 124, 516 F.2d 717, 721 (D.C.Cir.1975) ("Quaker Action IV" ).
(c) On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the grant of the preliminary injunction against the enforcement of the permit system. The Court of Appeals modified the injunction to require that anyone wishing to demonstrate in the area of the White House must instead of applying for a permit to demonstrate provide notice of the planned demonstration to the head of National Capital Parks at least fifteen days before the event; Id.
20. Under this procedure imposed by the Court, if a federal agency wished to prevent a planned demonstration for which a fifteen-day notice has been filed, the agency was required to apply to the District Court for a court order to stop the demonstration. National Capital Parks did not have the authority under the injunction to deny, on its own, permission to demonstrate pursuant to a fifteen-day notice. If no court order were obtained, persons demonstrating pursuant to a fifteen-day notice were treated, in effect, as demonstrators with a federally-authorized permit to demonstrate; Quaker Action I, supra, 137 U.S.App.D.C. at 184, 421 F.2d at 1119; A Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 2 n.1, 429 F.2d 185, 186 n.1 (D.C.Cir.1970) ("Quaker Action II" ); A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 355-356, 460 F.2d 854, 863-4 (D.C.Cir.1971) ("Quaker Action III" ); Wells dep. at 2, 28.
21. The fifteen-day notice system established by the Court of Appeals was in effect for a time in 1969 and continuously from April 1970 to September 1973. A form of fifteen-day notice was approved by the Court of Appeals in October 1970 and was in use continuously from that date until September 1973; A Quaker Action Group v. Morton, 362 F. Supp. 1161, 1167 (D.D.C.1973) (remand from Quaker Action III ); 35 Fed.Reg. 17552 (November 14, 1970).
22. The fifteen-day notice form prescribed by the Court of Appeals in the Quaker Action case was addressed to the General Superintendent (later called "Director") of National Capital Parks of the National Park Service. The fifteen-day notices were filed at the office of the Division of Special Events, a department of National Capital Parks; 35 Fed.Reg. 17552 (November 14, 1970); Lamb dep. at 7, 10, 44-50.
23. Under the system to handle fifteen-day notices it was not necessary for a person or group to receive any confirmation from National Capital Parks regarding a fifteen-day notice before demonstrating pursuant to the notice. People who filed fifteen-day notices and received no communication were entitled to rely on the notice as giving them authority to demonstrate in conformity with the notice; Dickenson dep. at 57.
C. The Presidential Inaugural Ceremonies Act and Regulations Thereunder
24. (a) The Presidential Inaugural Ceremonies Act, as amended, confers upon the Secretary of the Interior the authority to grant national parkland for the use of the Inaugural Committee, if requested, and confers upon the District of Columbia the authority to adopt ordinances and regulations applicable to each Inauguration; Presidential Inaugural Ceremonies Act, P.L. 84-986, 70 Stat. 1049 (1956), Amended by Act of Jan. 30, 1968, P.L. 90-251, 82 Stat. 4 (1968), D.C.Code § 1-1201 Et seq.
(b) In conjunction with the authority conferred by the Presidential Inaugural Ceremonies Act, the Director of National Capital Region, National Park Service notified the Chairman of the Inaugural Committee that the Lafayette Park area was committed to the exclusive use of the Inaugural Committee from January 15-25, 1973; Lamb dep. at 77-78, Lamb dep. exh. 15; Dickenson dep. at 53.
(c) Pursuant to the authority of the Presidential Inaugural Ceremonies Act, the District of Columbia City Council adopted Regulation No. 72-33 authorizing the Chief of Police to close streets and areas for the 1973 Inaugural; Regulation 72-33, Park Service Defendants' Motion for Summary Judgment.
(d) Pursuant to Regulation No. 72-33, the Metropolitan Police Department adopted Special Order No. 73-1, which, Inter alia, established police lines around the Lafayette Park area and prohibited entry except to persons having valid press passes and credentials from the Inaugural Committee; Special Event Order No. 73-1 §§ 4, 5; Park Service Defendants' Motion for Summary Judgment.
(e) The United States Park Police, pursuant to Special Event Order No. 2 closed the Lafayette Park and White House areas to all persons except those with a ticket or press pass for the area; Special Event Order No. 2, 1973 series, Park Service Defendants' Motion for Summary Judgment.
25. The Presidential Inaugural Ceremonies Act, District of Columbia City Council Regulation 72-33, Metropolitan Police Department Special Order 73-1 and Park Police Special Event Order No. 2 did not address demonstrators or demonstrations or the effect of the Quaker Action order. There was no plan or procedure for the application or dissemination of any Inaugural or other regulations or rules which were potentially applicable to peaceful demonstrators or demonstrations in the vicinity of the White House and the Lafayette Park area on Inauguration Day, 1973, either within any of the federal agencies or the Metropolitan Police or jointly.
26. The arresting officer, and certain supervisors and individual officers of the Park Police and the Secret Service who were assigned to the reviewing stand area on January 20, 1973, were unaware of the existence and terms of any Inaugural or other regulations or rules which were potentially applicable to peaceful demonstrators or demonstrations in the vicinity of the White House and the Lafayette Park area and of their duties or those of their agency or of other coordinate agencies to comply with any such Inaugural or other regulations or rules.
27. No officer or official undertook, on behalf of the Inaugural Committee or in light of the joint planning and coordination of security functions in the reviewing stand area, to determine whether or not to approach the Quaker Action Court for a countervailing order as to any demonstration noticed for that area on Inaugural Day, 1973.
28. Comparing the Presidential Inauguration Ceremonies Act and the provisions of Quaker Action at an earlier point in this litigation, Judge William B. Jones found as follows:
Saffron v. Wilson, 70 F.R.D. 51, 61 (D.D.C.1975).
29. None of the opinions in Quaker Action makes mention of Inaugural Day or the special circumstances of that day.
D. Plaintiff's Compliance with Quaker Action Procedures
30. Plaintiff Edward Saffron has regularly picketed alone in the vicinity of the White House since 1969. It has been his customary practice to wear or carry signs relating to a personal grievance he has against the United States Government; Saffron Affidavit (filed May 24, 1974), P 2-3.
31. While the fifteen-day notice system was in effect, plaintiff regularly filed fifteen-day notices for his picketing. At the request of National Capital Parks beginning in June 1971, plaintiff filed his fifteen-day notices once each month to cover a thirty-day period. Thus, for example, a notice filed on the first day of the month covered the thirty-day period from the sixteenth day of that month through the fifteenth day of the following month; Dickenson dep. at 24-25 and exh. 3; Lamb Affidavit (April 26, 1974), P 3.
32. On November 30, 1972, plaintiff filed with the Division of Special Events a fifteen-day notice that, according to the practice established for plaintiff's notices, covered the period December 15, 1972, through January 15, 1973; Lamb dep. exh. 5.
33. The Division of Special Events distributed copies of plaintiff's notice to, among others, the Park Police, the Metropolitan Police, the Secret Service and the F.B.I.; Id.
34. On January 2, 1973, plaintiff filed with the Division of Special Events a fifteen-day notice that, according to the practice established for plaintiff's notices, covered the period January 16, 1973, through February 15, 1973; Lamb dep. exh. 10; Lamb Affidavit (April 26, 1974), P 3.
35. No motion was filed in Quaker Action to obtain a court order, and no such order was entered, to prevent plaintiff's demonstration pursuant to his fifteen-day notice of November 30, 1972.
36. No motion was filed in Quaker Action to obtain a court order, and no such order was entered, to prevent plaintiff's demonstration pursuant to his fifteen-day notice of January 2, 1973, for the period which included Inaugural Day 1973.
E. Planning for the 1973 Inaugural
37. The Inaugural parade in 1973 was an event organized, financed and staged by a private organization called the 1973 Inaugural Committee; Lamb dep. at 75-76.
38. The 1973 Inaugural Committee requested Lafayette Park for its exclusive use for the Inaugural parade; Lamb dep. at 77-78.
39. (a) The person in charge of supervising, planning and preparation for the Secret Service for the 1973 Inaugural, given the title of Inaugural Coordinator, was Robert R. Burke, who is at present Deputy Assistant Director of the Secret Service and who in 1973 was an inspector in the Internal Investigation Unit of the Secret Service; Burke dep. at 1-2.
(b) Park Service planning for Inaugurals begins in the December before with the creation of a pre-Inaugural Committee of the Park Service, which reviews material from past Inaugurals. Specific planning can begin shortly after the election and appointment of an Inaugural Committee by the President-elect; See Lamb dep. at 69-78.
41. Any occurrence or person that could potentially cause a disturbance, diversion, disruption, or any other circumstance that would pose or increase security problems related to the Secret Service's protective functions are of particular concern to the Secret Service. Because demonstrators are particularly noticeable and hence create greater potential for causing a disturbance, diversion, disruption or any other circumstance that would pose or increase security problems related to the Secret Service's protective functions, their actions in the vicinity of a Secret Service protective function are particularly scrutinized by Secret Service agents; Burke dep. at 51-52, 54, 63-64.
42. The Inaugural Secret Service advance team for the 1973 Inaugural, in charge of making and coordinating arrangements in the Lafayette Park and White House areas, was headed by Secret Service Inspector William R. Holmes and his deputies John M. Wiley and Clint Howard; Burke dep. at 3; Holmes dep. at 10-13; Wiley dep. at 6-7; Howard dep. at 6-9.
43. Secret Service Agents Holmes, Wiley and Howard met regularly and on a largely informal basis with supervisory officials and other officers of the Park Police and the Metropolitan Police prior to January 20, 1973, in order to review, plan and coordinate security arrangements in the vicinity of the reviewing area in front of the White House, and including all of Lafayette Park, and to review anticipated problems for the security and other management of these areas, including anticipated demonstrators and demonstrations; Holmes dep. at 14; Wiley dep. at 19-22; Howard dep. at 20-25.
44. Written memoranda were apparently not prepared in connection with these meetings, either for instructional purposes or to assign and coordinate functions or to record the substance of these meetings; Holmes dep. at 14-20.
45. Two or three days before the 1973 Inaugural, Agents Holmes, Wiley, Howard and Burke met with other Secret Service officers to discuss the nature of the briefing which would be held for the instruction of Secret Service officers as to their responsibilities on January 20, 1973; Holmes dep. at 20-22.
46. (a) A briefing for all Secret Service officers who would be in the Lafayette Park area on January 20, 1973 was held in the New Executive Office Building, ending at approximately 9:30 a.m. on January 20, 1973. At this briefing there was no instruction given or discussion held relating to demonstrators or demonstrations, to the impact of the Quaker Action order and non-enjoined Quaker Action notices in light of the Inaugural, or to constitutional rights, including the First Amendment right of demonstrators; Holmes dep. at 23-24; Wiley dep. at 13.
(b) A briefing was held for all Park Police officers who would be assigned to the Lafayette Park area. All officers were informed that only persons with tickets or press passes could be admitted to the area. At this briefing there was no instruction given or discussion held relating to demonstrators or demonstrations, to the impact of the Quaker Action order and non-enjoined Quaker Action notices in light of the Inaugural, or to constitutional rights, including the First Amendment right of demonstrators; Hill dep. at 7, 13-14, 15; Lindsey dep. at 15-17.
47. During the time security operations continued in effect in the reviewing stand area on January 20, 1973, officers of the Metropolitan Police, the Park Police and the Secret Service could at all times communicate with their respective agencies through radio contacts and with members of other agencies by radio through a central command post.
48. The Secret Service, Park Police and Metropolitan Police, regularly consulted with each other and made joint decisions concerning, respectively, access to the reviewing stand area, and the authority of persons to be located in areas contiguous to the review stand area; Holmes dep. at 31-38; Wiley dep. at 18-22.
49. There was no written plan or procedure for the application of the Quaker Action order or any other plan for regulation of expressive conduct on Inauguration Day, 1973, either within any of the federal agencies or the Metropolitan Police or jointly.
F. Plaintiff's Removal and Arrest
50. About 9:20 a. m., on January 20, 1973, plaintiff arrived at the south side of Pennsylvania Avenue in front of the Executive Office Building between 17th Street and West Executive Avenue, N. W. Plaintiff put on his sandwich-board sign and began to picket slowly and peacefully by himself; Saffron dep. at 32-33.
51. Shortly thereafter, plaintiff moved his picketing east to the intersection of West Executive Avenue and the south side of Pennsylvania Avenue. Stands or bleachers blocked West Executive Avenue; on either side of the intersection were the bleachers in front of the Executive Office Building (to the west) and the stands built into the street in front of the White House (to the east); Saffron dep. at 32-33; Exhibit G2, Motion of Defendants Wright, Et al. to Dismiss (filed April 26, 1974).
52. After plaintiff arrived at West Executive Avenue on the south side of Pennsylvania Avenue, Park Police officers James C. Lindsey and William P. Brady arrived at the scene. Brady saw and read plaintiff's fifteen-day notice, and the notice was shown to Lindsey. Brady advised plaintiff that he would have to leave the area, and plaintiff responded that he had a "permit" to demonstrate. Without consulting anyone, Lindsey decided that plaintiff had to be removed from the area, and Brady escorted plaintiff across Pennsylvania Avenue to the southwest corner of Lafayette Park. At the time of his removal, plaintiff was not placed under arrest by the Park Police for violating any law; Burdick dep. at 15-16, 17; Brady dep. at 15-18; Lindsey dep. at 23-24, 26.
(a) Lindsey understood that his assignment on January 20, 1973, included assisting the Secret Service in screening persons near the White House. Lindsey was in plainclothes; Lindsey dep. at 9, 12, 21; Lindsey dep. exh. 1.
(b) Lindsey was familiar with the fifteen-day notice system, had seen plaintiff demonstrating in the area on prior occasions, and had on occasion been involved in checking plaintiff's fifteen-day notice; Lindsey dep. at 16, 29-30.
(c) Brady understood that his assignment on January 20, 1973, included assisting the Secret Service in the vicinity of West Executive Avenue on the south side of Pennsylvania Avenue. Brady was in plainclothes; Brady dep. at 8, 9; Lindsey dep. exh. 1.
(d) Brady was familiar with the fifteen-day notice system, had seen plaintiff demonstrating in the area on prior occasions, and had on occasion been involved in checking plaintiff's ...