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TOWNSEND v. CARMEL

December 20, 1979

Norman A. TOWNSEND et al., Plaintiffs,
v.
Samuel S. CARMEL et al., Defendants.



The opinion of the court was delivered by: ROBINSON, JR.

MEMORANDUM AND ORDER

Before the Court are five motions requiring resolution, to wit: (1) Individual Defendants' Motion to Dismiss, (2) Official Defendants' Motion to Dismiss, (3) Plaintiffs' Motion to Amend the Complaint, (4) Plaintiffs' Motion to Compel Defendants to Show Cause and for Attorney's Fees, and (5) Defendants' Motion for a Protective Order. Plaintiffs bring this action against two individual Federal officials seeking damages, and against the United States and a number of officials seeking declaratory and injunctive relief. Plaintiffs Townsend, Birch and Maguire seek damages from Defendant Carmel, Chief of Pentagon Security, and Plaintiff Townsend also seeks damages from Defendant Minardi, an officer of the Federal Protective Service. These three Plaintiffs claim that their arrest and detention on September 1, 1978, violated their Constitutional rights and also constitute common law torts.

 All Plaintiffs seek, in addition, declaratory and injunctive relief from a number of Government officials. They contend that the Pentagon's enforcement of its policy limiting to two the number of persons who may distribute leaflets on the steps of the Pentagon and prohibiting individuals from holding signs in front of pillars at the Pentagon are unconstitutional.

 I. Individual Defendants' Motion to Dismiss

 Plaintiff Townsend was arrested pursuant to the Assimilated Crimes Act, 18 U.S.C. § 13, for use of abusive language in violation of Va.Code 18.2-416. Plaintiff claims that this constitutes a wrongful arrest under color of state law in violation of 42 U.S.C. § 1983. This Court need not determine the legality of the arrest at this juncture, because it finds as a matter of law that the arrest was not made under the color of state law.

 18 U.S.C. § 13 essentially 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 Pentagon is located in Arlington, Virginia. Plaintiff used allegedly abusive language in his interactions with Defendants. The use of this language allegedly violated 18.2-416 of the Virginia Code.

 Defendants are Federal officers, and they applied federal law, which incorporated state law, in arresting Plaintiff. The arrest was clearly made under the color of federal law, not state law. As the Supreme Court stated in District of Columbia v. Carter, 409 U.S. 418, 424, 93 S. Ct. 602, 606, 34 L. Ed. 2d 613, "Actions of the Federal Government and its officers are beyond the purview (of § 1983)." Plaintiff Townsend's claim under 42 U.S.C. § 1983 must therefore be dismissed.

 Plaintiffs Townsend, Birch, and Maguire are suing individual defendants, due to alleged violations of their constitutional rights. See Bivens v. Six Unknown Agents of the FBI, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Dellums v. Powell, 184 U.S. App. D.C. 275, 566 F.2d 167 (D.C.Cir.1977). 28 U.S.C. § 1331 provides this Court with a basis for jurisdiction. In suits against Defendants other than the United States, damages must be in excess of $ 10,000. Because Defendants have proven to a legal certainty that Plaintiffs cannot meet this statutory criterion, the claims against the individual Defendants must be dismissed.

 Plaintiffs claim that their first and fourth amendment rights were violated because Defendants dispersed their demonstration, arrested them, and detained them. In Dellums v. Powell, supra, the Court reviewed a District Court's handling of an analogous situation. The jury awarded the demonstrators $ 7,500 each for the violation of their first amendment rights. The Court of Appeals reversed the damage award, claiming it was excessive. Id. at 195-196. The jury in Dellums awarded the demonstrators who were detained and jailed under twelve hours $ 120 compensation for the false arrest. The Court of Appeals held that this was reasonable. Id. The demonstrators in the instant case were never taken to jail, and were merely detained for four hours. This Court finds that, to a legal certainly, Plaintiffs have not suffered damages in excess of $ 10,000.

 Plaintiff Townsend claims that he, as a lawyer, will be grievously affected if he has an arrest on his record. Should the arrest remain on his record, Plaintiff asserts, he will suffer damages in excess of $ 10,000. This Court has the power to strike the arrest from Plaintiff's record, nunc pro tunc, if there were no reasonable grounds for probable cause or the arrest was made in bad faith. See Sullivan v. Murphy, 380 F. Supp. 867, 869 (D.D.C.1974) approved in Dellums v. Powell, supra, at 173, footnote 2. On the other hand, if there was reasonable grounds for probable cause and the arrest was made in good faith, the individual Defendants are protected by qualified sovereign immunity. See Butz v. Economou, 438 U.S. 478, 497, 98 S. Ct. 2894, 2906, 57 L. Ed. 2d 895 (1978); Dellums v. Powell, supra, at 179-180. In the former instance, Plaintiff would suffer no damages because the arrest would be stricken from his record; in the latter instance, Plaintiff would not be entitled to damages because the arrest would be valid. Plaintiff Townsend's claim must be rejected.

 II. Official Defendants' Motion to Dismiss

 Defendants assert numerous bases for this Motion, none of which is compelling. First, they claim that the property outside the Mall and River entrances to the Pentagon are not public fora, citing Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966) and Greer v. Spock, 424 U.S. 828, 96 S. Ct. 1211, 47 L. Ed. 2d 505 (1976). Their rationale is unsupported by those cases. In the instant case, the land is open to the public; the only restrictions are on demonstrations of more than two people. In Adderley, the land was part of a penitentiary that was closed to the public; in Spock, the land was a military base and access to the public was extremely limited. Defendants have failed to show that demonstrations at the Mall and River entrances are "incompatible with the normal activity" at those entrances. See Greer v. Spock, supra, at 843 (Powell, J., concurring). Their Motion to Dismiss on this point must be rejected.

 Second, Defendants claim that, contrary to Plaintiffs' allegations, 41 C.F.R. 101-20.304 is not overbroad or vague, and the arrests made pursuant to that regulation were valid. The regulation 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.

 Defendants claim that this regulation is merely the enforcement arm covering the Code of Federal Regulations, is limited by the other regulations, and is therefore constitutional. There is no regulation either prohibiting or limiting all public behavior at the Mall and River entrances to the Pentagon. Defendants therefore must be relying on 41 C.F.R. 101-20.304 either exclusively or in tandem with some unwritten rule. The constitutionality of this regulation is in serious question. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973). Defendants' assertion that 41 C.F.R. 101-20.304 is constitutional must be rejected.

 Finally, Defendants claim that Plaintiffs do not have standing to challenge the constitutionality of 41 C.F.R. 101-20.309. They allege that Plaintiffs have suffered no injury in fact because this regulation was not enforced against them. See Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975); O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974); Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). On this issue Defendants must prevail. They ...


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