58. The deposition of officer Mann reveals that he arrested Saffron because Saffron had crossed the police line into a blocked off area:
Q: Okay. Now, did any particular event precipitate your arrest of Mr. Saffron: Anything he said or did?
A: What he did. He came back across the street into the area which was blocked off;
Mann dep. at 35.
59. Mann called a police wagon to transport plaintiff to a nearby precinct station. When the wagon arrived, a picture was taken of Mann standing next to the plaintiff. Plaintiff was frisked and handcuffed by the officers in the wagon crew. Plaintiff was transported in the police wagon to the precinct station and, after about an hour of additional detention, posted collateral and was freed. The failure-to-move-on charge was later dropped by the District of Columbia Corporation Counsel's office; Mann dep. at 39-40, 42-43; Saffron dep. at 45-48, 54.
60. Defendant District of Columbia admits that the charge of failure-to-move-on did not properly apply to plaintiff.
61. At no time during his presence on the south side of Pennsylvania Avenue at West Executive Avenue, on the southwest corner of Lafayette Park, or at H. Street where he was arrested did plaintiff engage in a violent act or threaten anyone with violence; Brady dep. at 27, 50-51; Niedringhaus dep. at 36; Lindsey dep. at 30-31; Hill dep. at 28; Mann dep. at 27.
G. Planning With Respect to First Amendment Rights of Demonstrators at Inaugural Days Subsequent to 1973
62. Neither the Metropolitan Police, the Park Police nor the Secret Service promulgated, applied or disseminated, either individually or jointly, a plan or procedure for dealing with, and protecting, the First Amendment rights of lawful demonstrators and demonstrations in the vicinity of the White House and Lafayette Park area on Inauguration Day, 1977.
63. Neither the Metropolitan Police, the Park Police nor the Secret Service has yet promulgated, applied or disseminated, either individually or jointly, a plan or procedure for dealing with, and protecting, the First Amendment rights of lawful demonstrators and demonstrations in the vicinity of the White House and Lafayette Park area on Inauguration Day, 1981.
64. No modification in plan or procedure has been made as a result of this litigation and none is planned as to the Secret Service; Knight dep. at 39-40.
Plaintiff continues to appear carrying signs in front of the White House and alleges that he feels inhibited as to Inaugural Day picketing; Second Amended Complaint PP 49, 50.
65. Plaintiff did not attempt to appear or carry any sign in front of the White House on Inaugural Day, 1977.
II. CONCLUSIONS OF LAW
A. Jurisdiction and Mootness
1. The Court has jurisdiction in this matter under 28 U.S.C. § 1331 (1976).
2. This case is not moot. Plaintiff has evidenced a pattern of demonstrating on the White House sidewalk over an eight year period. The fact that he has occasionally been sick and did not demonstrate on Inaugural Day 1977 does not disrupt that pattern. Plaintiff alleges that he is discouraged from the exercise of his First Amendment rights both during his daily picketing and on future Inaugural days; Second Amended Complaint PP 49, 50. Plaintiff has appeared in this Court in this case on numerous occasions; for example, portions of his deposition of November 16, 1978, were taken in the presence of the Court. The Court is convinced that plaintiff would continue to picket in the future and on future Inaugural days if he could do so without interference; the Court is also convinced that, given the current lack of regulations governing such conduct, plaintiff faces an uncertain reception on future Inaugural days. Thus plaintiff's claim presents an ongoing case or controversy. Compare O'Shea v. Littleton, 414 U.S. 488, 495-98, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974).
B. Official Defendants' Liability for Plaintiff's Removal From White House Sidewalk and Failure to Promulgate Valid Plan or Regulations
3. Plaintiff had a constitutional right to engage in expressive conduct on the White House sidewalk on Inaugural Day 1973. That right may only be restricted by defendants according to non-discriminatory, articulated standards, in sufficient time for judicial review of a denial or restriction of his right, in accordance with the principles set out by our Court of Appeals in Quaker Action IV, supra; see Conclusions of Law 20, Infra.
4. Official defendants Wells, Knight, Jefferson and the District of Columbia violated that right when they detained plaintiff and removed him from the White House sidewalk after failing prior to January 20, 1973, to promulgate regulations appropriate to Inaugural Day pursuant to the principles ultimately announced in Quaker Action IV, supra.
5. Had defendants promulgated and pursued a constitutional plan for the regulation of expressive conduct on Inaugural Day, plaintiff's right to be present on the White House sidewalk would have been determined in advance and, if necessary, judicially reviewed. There is no evidence nor allegation here that plaintiff's removal was occasioned by any emergency or any factor which would have justified summary removal, even if there had been a valid plan. Under the undisputed facts, therefore, the failure of defendants to promulgate and enforce a constitutionally-valid plan was the proximate cause of the violation of plaintiff's constitutional rights on Inaugural Day 1973; Shifrin v. Wilson, 412 F. Supp. 1282, 1303 (D.D.C.1976).
6. Defendants' failure since 1973 to promulgate Inaugural Day regulations constituted an ongoing violation of plaintiff's constitutional rights and constitutes a continuing threat by defendants to impose the same restraints upon plaintiff's expressive conduct on future Inaugural Days.
7. Although defendant Secret Service takes a lead in Inaugural Day planning, all three official defendants jointly share the responsibility for that planning; See Findings of Fact 24, 39, 40, 42, 43, 46, 47, 48, Supra. Therefore, the official defendants representing the Secret Service, the Metropolitan Police and the Park Police are legally responsible for their past and ongoing failure to accord their Inaugural Day planning with the Constitution; See also Conclusions of Law 14-16, Infra. It is irrelevant to this conclusion, and the Court need not find, that Secret Service agents personally participated in ordering or requesting Saffron's removal from the White House sidewalk; See Findings of Fact 53, 54, Supra.
8. The principles governing plaintiff's right to engage in expressive conduct near the White House on Inauguration Day, the government's right under certain circumstances to restrict that conduct and the constitutionally-permissible methods of so restricting it (including provision for judicial review of restrictions) are set out authoritatively in Quaker Action IV, supra. That case arose from an attempt by five organizations to hold demonstrations on the White House sidewalk and in Lafayette Park in 1969. Most of the groups had unsuccessfully applied to the Park Service for permits, pursuant to a requirement, neglected until 1967, that individuals obtain permits prior to use of National Park areas within the District for public gatherings; 36 C.F.R. 50.19 (1973); in reactivating the requirement in 1967, a numerical restriction on groups which would be granted permits was imposed; Supra at 721.
The final chapter of the lengthy litigation, which generated four Court of Appeals decisions, represented a definitive statement of the principles to guide the regulation of expressive conduct in the White House vicinity, and applied those principles in reviewing the District Court's evaluation of the existing regulations which had occurred in the context of a full trial. Earlier, the Court had overturned the entry of summary judgment for the government, concluding that the balancing of First Amendment and other rights involved "required the judgment of the court" and should not be based merely on a finding of reasonableness and substantial evidence in the administrative record; the question of the "safety of the President" and whether
officials involved ha(d) transformed the concern into an excessive preoccupation with security that is achieved at the unnecessary expense of First Amendment freedoms . . . 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.
Quaker Action IV, supra, at 723.
The Court of Appeals identified the duties of the government in regulating expressive conduct and evaluated some of the interests to be considered in that regulation, an evaluation directly applicable to this case. The "proper course," it concluded, is to balance First Amendment rights against other legitimate interests and to structure a scheme that does not "risk abuse of First Amendment rights through a broad censorship power or other improper application of theoretically acceptable restraints." Id. at 725 (footnote omitted). It quoted a summary of guidelines laid down by the Supreme Court:
(Restrictions) on expression are valid if (1) the "(regulation) furthers an important or substantial government interest," (2) the "governmental interest is unrelated to the suppression of free expression," and (3) the incidental restriction on alleged First Amendment rights is no greater than is essential to the furtherance of that interest.