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COMMUNITY v. CARVINO

May 11, 1987

Community For Creative Non-Violence, et al., Plaintiffs,
v.
James J. Carvino, et al., Defendants


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, United States District Judge

MEMORANDUM

 Plaintiffs are the Community for Creative Non-Violence ("CCNV"), an unincorporated association of persons, and Mitch Snyder, who speaks for CCNV. Defendants are James J. Carvino, Chief of the United States Capitol Police, and the Capitol Police Board ("Board").

 Plaintiffs seek a declaration that section 156(a)(2) of Article XIX of the Traffic and Motor Vehicle Regulations for the United States Capitol Grounds is unconstitutional because it impermissibly infringes on first amendment rights of expression, and invalid because its promulgation was not authorized by statute. That section is one of a number of regulations adopted by the Police Board in 1976 to govern demonstration activity on the Capitol Grounds. Plaintiffs are challenging that part of subsection 156(a)(2) that provides: "no permit shall authorize demonstration activity having a duration of more than 24 consecutive hours." The matter is here on the parties' cross-motions for summary judgment.

 The present dispute arose out of a demonstration plaintiffs commenced on November 27, 1986 and ended sometime after Congress convened in January 1987. On November 19, 1986, plaintiff CCNV applied to the Capitol Police Board for a demonstration permit. CCNV requested a permit to serve dinner on Thanksgiving Day and on each succeeding night on the Capitol Grounds to homeless people in the area, and to maintain a vigil in support of the homeless. Plaintiffs intended to continue their vigil on the Capitol Grounds until Congress passed emergency legislation to provide shelter for the homeless or until winter ended, whichever came first. Complaint at 3, para. 9. As part of the demonstration, plaintiffs requested permission to include as a "prop" a 500 pound statue, with a base seven and a half feet in length and five and a half feet in width, entitled "Third World America: A Contemporary Nativity." The statue, which plaintiffs describe as a modern day creche, depicts a black family (mother, father and child) huddled on a steam grate, and bears the legend "And still there is no room at the Inn." *fn1" Around the base of the statue, plaintiffs intended to place four stanchions and velvet covered rope.

 On November 24, 1986, the Capitol Police Board granted plaintiffs a demonstration permit. The permit covered a seven day period beginning at noon on Thanksgiving day, November 27, 1986, and ending December 3, 1986. The placement of the statue on the Capitol Grounds as part of the vigil was specifically provided for in the permit. However, pursuant to section 156(a)(2) of the traffic regulations, the permit provided that the duration of each demonstration was to be "less than 24 consecutive hours each day" and that "all approved Props and Equipment shall not remain within Capitol Grounds for more than 24 consecutive hours each day."

 On November 26, 1986, plaintiffs requested that the statue be exempted from the 24 hour requirement. They explained that because of the size, weight, fragility and expense of the statue (which plaintiffs value at over $ 15,000), moving it off the Capitol Grounds once every twenty-four hours would be unduly burdensome. Defendants denied the request, citing section 156(a)(2) of the regulations.

 Plaintiffs then filed this civil action, along with a motion for a temporary restraining order to prohibit defendants from enforcing section 156(a)(2) "against the plaintiffs for maintaining their modern day creche on Capitol Grounds." Proposed Order for Preliminary Injunction at 2 (attached to Memorandum for Preliminary Injunction, supra). Plaintiffs explained that the statue was "a core element of their vigil, and a central part of the message they wish to convey." Memorandum for Preliminary Injunction at 11. They argued that the 24 hour rule would "make it impracticable to include the statue in the vigil," id. at 4, and thus would deny plaintiffs their first amendment rights of expression. A hearing on the motion was held before Judge Penn on November 28, 1986. After hearing argument, Judge Penn granted the temporary restraining order effective until December 9, 1986. See CCNV v. Carvino, 648 F. Supp. 476 (D.D.C. 1986). Subsequently, plaintiffs obtained a second demonstration permit for the period of December 3-10, 1986.

 At a hearing on December 9, 1986, this Court extended the temporary restraining order for another 10 days, until December 19, 1986, or until a decision on plaintiffs' motion for a preliminary injunction was issued, whichever came first.

 On December 17, 1986, plaintiffs' motion for a preliminary injunction was denied, see CCNV v. Carvino, 654 F. Supp. 827 (D.D.C. 1987), and on December 29, 1986, the Court of Appeals denied plaintiffs' emergency motion for an injunction pending appeal. CCNV v. Carvino, 648 F. Supp. 476 (D.C. Cir. 1986). Both courts concluded that plaintiffs had not demonstrated the requisite likelihood of success on the merits.

 I.

 Although the statue has been removed and the demonstration has ended, plaintiffs persist in their challenge to section 156(a)(2), noting that they may wish to demonstrate again on the Capitol Grounds and arguing that the defendants' adherence to the traffic regulation threatens any such demonstration. Plaintiff Snyder declares that next winter "it is likely that plaintiffs will (if allowed) maintain the same type of presence on the Capitol Grounds, including the statue, as was maintained this year . . . ." Declaration of Mitch Snyder at 1 (filed Jan. 21, 1987). Defendants represent that in light of this declaration, "defendants do not believe that they can at this time successfully maintain that this matter is moot." Defendants' Second Supplemental Memorandum (filed Jan. 27, 1987). Because a live case or controversy is a constitutional prerequisite to jurisdiction, it is necessary to address that issue sua sponte.

 In Burke v. Barnes, 479 U.S. 361, 107 S. Ct. 734, 736, 93 L. Ed. 2d 732 (1987), the Supreme Court explained that it is not enough for a case to be "live" at the time that the complaint is filed. In order to be a justiciable case or controversy, the case must be "live" at the time of decision. Furthermore, "the Article III case or controversy requirement is as applicable to declaratory judgments as it is to other forms of relief." Conyers v. Reagan, 246 U.S. App. D.C. 371, 765 F.2d 1124, 1127 (D.C. Cir. 1985); see also Golden v. Zwickler, 394 U.S. 103, 108, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969). Our Court of Appeals has stated:

 
In determining whether a request for declaratory relief has become moot, "the question . . . is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."

 Conyers, 765 F.2d at 1128 (quoting Preiser v. Newkirk, 422 U.S. 395, 402, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975)) (emphasis in original).

 Under the circumstances, the facts alleged by plaintiffs present a live case or controversy, ripe for review at this time. In Juluke v. Hodel, 258 U.S. App. D.C. 364, 811 F.2d 1553 (D.C. Cir. 1987), CCNV challenged regulations prohibiting the placement of parcels on the sidewalk in front of the White House. The court of appeals rejected the Government's argument that the case was moot, stating that:

 
It is possible to argue that the civil case is now moot if the appellants no longer intend to demonstrate and thus will not in the future be subject to prosecution under the challenged regulations. However, neither the Government nor the appellants raise this mootness argument either in their briefs or in oral argument before this court. This is not surprising because the appellants sought both declaratory and injunctive relief in the civil action. Complaint for Declaratory and Injunctive Relief para. 2; see Better Gov't Ass'n v. Department of State, 250 U.S. App. D.C. 424, 780 F.2d 86, 91 (D.C. Cir. 1986) (Even if a challenge to a specific application of a regulation to a party is rendered moot, a challenge to the facial validity of the regulation may still present a live controversy.). Furthermore, no one doubts that the members of CCNV are likely to continue with demonstrations at the White House and therefore fear future prosecution.

 Juluke, 811 F.2d at 1559 n.22. The material facts here are identical to those found in Juluke. These similarities require the court to exercise ...


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