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KROLL v. UNITED STATES CAPITOL POLICE

July 5, 1983

Michael A. KROLL, Plaintiff,
v.
UNITED STATES CAPITOL POLICE, et al., Defendants



The opinion of the court was delivered by: PENN

 Plaintiff brings this action for damages against the United States Capitol Police, the United States, and several officers of the Capitol Police force, for false arrest, false imprisonment, negligence, gross negligence, and violations of his constitutional rights. The case is presently before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment on the entire action, and plaintiff's cross-motion for partial summary judgment on the issue of liability. Plaintiff also requests that the issue of damages be set for trial by jury.

 I

 The material facts are not in dispute. On February 1, 1980 a ceremony was held on the West steps of the United States Capitol Building to welcome the official 1980 Winter Olympics Torch Relay Team. The event was authorized by Senate Resolution 342, 126 Cong.Rec. S574-575 (daily ed. Jan. 29, 1980), which stated that "such ceremony shall be open to the public."

 Plaintiff attended the ceremony, situating himself at the edge of the crowd of approximately 100 spectators. He held a banner reading "OLYMPIC TORCH = FREEDOM! OLYMPIC PRISON = SLAVERY!", protesting the planned conversion of the Olympic housing facilities, after the Olympics, into a federal prison for youthful offenders. While he was present at the Capitol plaintiff also disseminated several leaflets expressing his position against using the Olympic dormitories as a prison.

 Plaintiff did not acquire a permit to demonstrate prior to his arrival at the Capitol. Article XIX of the "Traffic Regulations for Capitol Grounds" ("traffic regulations") provides, in pertinent part:

 
Section 153. Permits
 
In the interest of the orderly movement of vehicular, pedestrian, and other traffic on the Capitol Grounds, on and after the effective date of this article, no demonstration activity (as hereinafter defined in this article) shall be carried out on the United States Capitol Grounds except pursuant to the terms of a valid permit issued by the Capitol Police Board in accordance with this article and which has not been revoked as provided for therein.

 Nothing in the record suggests that plaintiff would have obtained a permit if he had had sufficient time, but, in any event, he did not have time because he first learned of the ceremony earlier that morning.

 At approximately 11:30 a.m., defendant Captain Harry Grevey, of the United States Capitol Police, approached plaintiff and informed him that he was demonstrating unlawfully because he did not have a permit. When plaintiff inquired whether the approximately twelve other persons holding banners or signs in the vicinity had permits, he was told that the Capitol Police could not allow, without a permit, the display of ideas which conflicted with the purpose of the ceremony. Plaintiff refused to leave or lower his banner. Shortly thereafter two other officers of the Capitol Police, defendants Yaworke and Mobbs, approached plaintiff and told him to lower his banner. When plaintiff again refused, he was arrested.

 The parties agree that plaintiff was arrested, imprisoned, and later released, but they disagree as to the time plaintiff spent in custody. This dispute is not material to the pending motions as the time spent in custody is only relevant to damages which must be decided by a jury.

 II

 Analysis of First Amendment rights in public places must begin with the words of Justice Roberts in Hague v. CIO, 307 U.S. 496, 515, 59 S. Ct. 954, 964, 83 L. Ed. 1423 (1939):

 
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

 See also United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 1708, 75 L. Ed. 2d 736 (1983) ("Traditional public forum property occupies a special position in terms of First Amendment protection. . . ."), aff'g in part and vacating in part Grace v. Burger, 214 U.S.App.D.C. 375, 665 F.2d 1193 (1981).

 The right to use public places for free expression extends beyond sidewalks and parks. *fn1" Among other places, this right has been recognized to exist on the grounds of the United States Capitol. Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575 (D.D.C.), aff'd mem., 409 U.S. 972, 93 S. Ct. 311, 34 L. Ed. 2d 236 (1972). See generally United States v. Grace, 103 S. Ct. at 1710 (Marshall, J., concurring in part and dissenting in part); Grace v. Burger, 214 U.S.App.D.C. at 380-381, 655 F.2d at 1198-1199.

 But, the right to free exercise of expression in public places is not unbounded. Reasonable time, place and manner regulations may be imposed as long as they "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983). See, e.g. Heffron v. International Society for Krishna Consciousness (ISKON), 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981) (state fair); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (public school grounds); Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941) (parades on public streets).

 III

 At the threshold, it is incumbent upon the Court to construe the traffic regulations, if possible, in a manner that would avoid the constitutional question. United States v. Grace, 103 S. Ct. at 1706. Toward this end the words in the regulations must be given their common meaning and modern usage. Culver v. Secretary of Air Force, 182 U.S.App.D.C. 1, 8, 559 F.2d 622, 629 (1977).

 To accomplish this task the Court must first ascertain the confines of constitutionally permissible government restrictions. The standard for restricting access to inherently public places was first explicated in United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968):

 
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

 Accord, Heffron v. ISKON, 452 U.S. at 647-649, 101 S. Ct. at 2564-2565; Grace v. Burger, 214 U.S.App.D.C. at 383-384, 665 F.2d at 1201-1202. Essentially this process involves balancing freedom of expression guarantees against conflicting governmental interests in a manner that restricts the former as minimally as possible. A Quaker Action Group v. Morton, 170 U.S.App.D.C. at 132, 516 F.2d at 725.

 Permit systems have been used to effectuate this purpose. A permit requirement is a prior restraint on First Amendment rights, and as such must conform to the O'Brien standards. See A Quaker Action Group v. Morton, 170 U.S.App.D.C. at 134, 516 F.2d at 727. In Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941), the Court upheld "time, place and manner" restrictions on processions and parades in public streets "to conserve the public convenience." Id. at 575-576, 61 S. Ct. at 765. The permit requirement served the purpose of notifying the authorities so they could provide policing, thereby ensuring order and obviating the confusion concomitant with overlapping parades. Id.

 Certainly, where two groups are competing for the same area and one would truly interfere with the other, a first-come, first-served restriction is reasonable. This follows from the Supreme Court's admonishment that "the right of free speech . . . does not embrace a right to snuff out the free speech of others." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 387, 89 S. Ct. 1794, 1805, 23 L. Ed. 2d 371 (1969). But, if there is no real conflict, then the government has no legitimate interest and should not be allowed to restrict free speech.

 
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731 (1969). See also Perry Education Assn., 103 S. Ct. at 960 ("In a public forum, by definition, all parties have a constitutional right of access and the state must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint or a single subject."). In this case, plaintiff's presence did not obstruct traffic, *fn2" pedestrian or vehicular, nor did he promote confusion or otherwise interfere with the orderly proceeding of the ceremony. Moreover, plaintiff did not compete with the ceremony by imposing his views to the exclusion of the other message. He did not speak, and thus ...


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