They will be estopped from asserting later, however, that this regulation provided the necessary foundation for 41 C.F.R. 101-20.304.
III. Plaintiffs' Motion to Amend Complaint
Plaintiffs want to amend their complaint to add Mr. David Cooke in both his individual and official capacity, and add a tort claim under the Federal Tort Claims Act. The addition of Mr. Cooke as an individual Defendant must be denied because the claims against all individual Defendants have been dismissed. Plaintiff may file an amended complaint, however, to add Mr. Cooke in his official capacity and to assert a claim under the Federal Tort Claims Act.
IV. Plaintiffs' Motion to Compel
Plaintiffs allege that Defendants have defied the Preliminary Injunction issued by this Court on April 6, 1979. They assert that a third party was arrested in violation of the injunction. Plaintiffs have not presented a scintilla of evidence indicating that they suffered any harm whatsoever from the alleged violation of the injunction. They thus lack standing to assert this Motion. See Warth v. Seldin, supra. Their Motion to Compel Defendants to Show Cause and for Attorney's Fees must be rejected.
V. Defendants' Motion for a Protective Order
Defendants have sought a protective order precluding discovery until two weeks after the Motions to Dismiss are disposed of. Defendants have shown no reason for the two week reprieve. Now that the Motions to Dismiss have been disposed of, Defendants' Motion for a Protective Order is denied.
It is therefore by the Court this 20th day of December, 1979,
ORDERED, that Individual Defendants' Motion to Dismiss is GRANTED; and it is
FURTHER ORDERED, that Official Defendants' Motion to Dismiss is DENIED; and it is
FURTHER ORDERED, that Plaintiffs' Motion to Amend their Complaint is GRANTED, insofar as such amendment is consistent with Section III of this Memorandum; and it is
FURTHER ORDERED, that Plaintiffs' Motion to Compel Defendants to Show Cause and for Attorney's Fees is DENIED; and it is
FURTHER ORDERED, that Defendants' Motion for a Protective Order is DENIED; and it is
FURTHER ORDERED, that Plaintiffs will submit their Motion for Summary Judgment on or before January 31, 1980.
ON MOTIONS FOR SUMMARY JUDGMENT
Before the Court are Cross Motions for Summary Judgment in an action brought by Plaintiffs Townsend, Birch, Maguire, et al., against Defendants Carmel et al., for permanent injunctive relief and damages pursuant to the first, fourth, and fifth amendments and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The facts of the case may be summarized as follows.
Plaintiffs are members of a group who have periodically exercised their first amendment rights at the Mall and River entrances to the Pentagon since September 1, 1978. To date, they have exercised those rights in an orderly fashion. Leaflets are distributed at the base of the stairs to the Pentagon in a manner that does not block ingress or egress to that building, and there is no contention that any of the demonstrators have disrupted operation at the Pentagon in any fashion.
Defendants are members of either the Federal Protective Service (FPS) or the Department of Defense's Pentagon Security Force. At one of the demonstrations, the three Plaintiffs named above were arrested. Plaintiff Townsend was arrested pursuant to the Assimilated Crimes Act, 18 U.S.C. § 13, which provides that if there is no federal law governing certain behavior, state law is to be applied as federal law on federal property located in the states. The state law in question is Va.Code 18.2-416, which provides, inter alia, that a person who curses or abuses another is guilty of a misdemeanor. According to Defendants, Plaintiff Townsend stated to an FPS officer "You can't do that, I'll sue your ass", "Your're a damn fool, I'll sue your ass", and "You son of a bitch, I'll sue you." Each statement was allegedly uttered once in response to the officer's attempts at dispersing the demonstrators. Defendant Townsend admits that he stated "You can't do that, I'll sue your ass," but denies uttering the other statements.
Defendants Birch and Maguire were arrested pursuant to 41 C.F.R. § 101-20.304, which states that
Persons in and on property shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the directions of federal protection officers and other authorized officials.
Plaintiffs were arrested because they failed to obey a directive to leave the steps and areas adjacent to pillars within five minutes. At no time were Plaintiffs behaving in a disorderly fashion; rather, they were violating an FPS "policy" prohibiting more than two demonstrators at the Mall and River entrances to the Pentagon at any one time.
Subsequent to the arrests, Plaintiff Townsend was handcuffed, booked, and detained at the Pentagon for over three hours before being released. Plaintiffs Birch and Maguire were placed in a police van, booked, detained for over three hours, removed from Pentagon property, and released. The charges against all three defendants were subsequently dismissed. There are two matters of law requiring resolution, to wit: (1) is 41 C.F.R. § 101.20-304 unconstitutional, and (2) is the government liable for false arrest, false imprisonment, assault, and battery under the Federal Tort Claims Act because of the above-stated actions.
I. 41 C.F.R. § 101.20-304
Defendants contend that the regulation is valid because (1) the Pentagon is a unique building, in need of special protection, (2) it is merely the enforcement arm of the C.F.R., (3) Plaintiffs engaged in unconstitutional activity lack standing to contend that the regulation leading to their arrest is unconstitutional, and (4) a limiting construction may be placed on the regulation so that it may withstand constitutional scrutiny. The Court has already rejected Defendants first two claims. See Townsend v. Carmel, 494 F. Supp. 30, Slip Op. at 4-5, (D.D.C. 1979). Defendants' third claim lacks merit because the Plaintiffs in this case were constitutionally exercising their first amendment rights.
Notwithstanding U. S. v. Shiel, 611 F.2d 526 (4th Cir. 1979), it is abundantly clear that the regulation in question is unconstitutionally vague and overbroad. While Defendants correctly assert that statutes apparently overbroad may be upheld by imposing a limiting construction upon them, Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973), they have not presented such a construction to the Court. The Court understands Defendants' failure to offer a narrow construction of the regulation 41 C.F.R. § 101.20-304 is simply not conducive to limitation. Rather, as is apparent from both the plain meaning of the regulation and its application in the instant case, 41 C.F.R. § 101.20-304 affords the FPS and "other authorized officials" unfettered discretion to exercise limitless police powers. Individuals can be (and in the instant case have been) arrested merely for disobeying a FPS directive that the officer had no right to give.
In Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1971) the Supreme Court scrutinized the constitutionality of a vagrancy statute that provided the police with broad powers. The Court held that that statute was unconstitutional because of "the effect of unfettered discretion it place(d) in the hands of the Jacksonville police." Id., at 168, 92 S. Ct. at 846. "Where the list of crimes is so all-inconclusive and generalized as the one in this ordinance," the Court stated, "those convicted may be punished for no more than vindicating affronts to police authority." Id., at 166, 92 S. Ct. at 846. In Papachristou, the ordinance listed specific offenses, and thus to some extent limited the authority of the police. In the instant case, FPS authority under the regulation is limitless. Indeed, arrests are made pursuant to 41 C.F.R. § 101.20-304 precisely to vindicate affronts to police authority.
Mr. Justice Douglas, speaking for a unanimous Court in Papachristou, succinctly expressed this Court's reaction to the instant case:
Where, as here, there are no standards governing the exercise of the discretion granted by the (regulation), the scheme permits and encourages (the) arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for "harsh and discriminatory enforcement by (the federal protective service) against particular groups deemed to merit their displeasure." It results in a regime (where) the poor and unpopular are permitted to "stand on a public sidewalk . . . only at the whim of any (FPS) officer . . ." The (regulation) cannot be squared with our constitutional standards and is plainly unconstitutional. (citations omitted).
Id., at 170-71, 92 S. Ct. at 847-48.
II. Tort Liability
Plaintiffs Townsend, Birch and Maguire allege that the Federal government is liable under the Federal Tort Claims Act (FTCA) 28 U.S.C. § 2671, et seq. It is clear that the Federal government is vicariously liable for the torts of assault, battery, false arrest, and false imprisonment if those torts were committed by Federal law enforcement officers. 28 U.S.C. § 2680(h). It is undisputed that the Federal Protective Service is made up of law enforcement officers. Thus, the limited exception to liability for these intentional torts is not applicable in the instant case.
The government contends, however, that the United States is the recipient of personal defenses that could be asserted by Federal officers in suits against them in their individual capacity. Thus, Defendants assert that (1) there was probable cause for the arrest of Plaintiffs, (2) the officers acted in good faith, (3) under Dellums v. Powell, 184 U.S. App. D.C. 275, 566 F.2d 167, 175-176 (D.C.Cir.1977) the officers would be protected by a qualified immunity, and (4) therefore, the government is relieved from liability. The Court need not reach the first three issues presented by the government, however, because it finds a matter of law that the defense available to officers in their individual capacity is not available to the government.
In all circumstances, the government may assert any defense that a private party could assert. 28 U.S.C. § 2674. The defenses available to an individual qua government employee, however, are not the same as defenses available to private parties. Thus, 28 U.S.C. § 2680(a) provides that the FTCA does not apply in instances where the government employee was "exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance (of) or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) therefore provides the government with the "individual qua government employee" defense.
If 28 U.S.C. § 2680(a) applied to law enforcement officials, the government's assertion would carry merit. Twenty-eight years after the enactment of § 2680(a), however, Congress amended § 2680(h) establishing Federal liability for intentional torts committed by federal law enforcement authorities. The legislative history delineates the scope of § 2680(h). It states that the government is liable
whenever its agents act under color of law so as to injure the public through searches and seizures that are conducted without warrants or with warrants issued without probable cause. However, the Committee's amendment should not be viewed as limited to constitutional tort situations, but would apply to any case in which a Federal law enforcement agent committed the tort while acting within the scope of his employment or under the color of Federal law.