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THOMAS v. UNITED STATES

September 16, 1988

WILLIAM THOMAS, et al., Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE.

 Pro se plaintiffs William Thomas, Ellen Thomas, Concepcion Picciotto, Robert Dorrough, and others, individually and as organized, in various combinations, into the "White House Antinuclear Vigil" and the "Peace Park Anti-Nuclear Vigil" sue President Reagan, the Secretary of the Interior, and numerous Interior and Park Police officials for injuries allegedly arising out of plaintiffs' communicative activities in Lafayette Park, Washington, D.C.

 In 1984, plaintiffs filed suit against Department of the Interior officials challenging the constitutionality of several regulations regulating the time, place, and manner of First Amendment activity near the White House and in Lafayette Park. Plaintiffs also sought damages for injuries arising out of an alleged federal conspiracy to promulgate those regulations for the purpose of infringing plaintiffs' First Amendment freedoms. In 1987, plaintiffs filed a second action against many of the same federal defendants together with News World Communications, doing business as the Washington Times, the Reverend Sun Myung Moon, and others associated with the newspaper and with a political association known as the Young Americans for Freedom. The 1987 complaint reiterated the constitutional challenges launched against the regulations and against federal officials in 1984. At the same time, plaintiffs broadened their constitutional tort allegations to embrace the nonfederal defendants, on a theory that the Washington Times had engaged in a campaign to libel plaintiffs and to discredit and, eventually, to suppress their expressive activity.

 An Order issued on February 23, 1988, dismissed all counts of the 1987 complaint against all but three of the named nonfederal defendants. Because the reasoning of the February 23 Order applies with equal force to plaintiffs' claims against these three defendants as to the claims against the Times defendants, those claims must also be dismissed for failure to state a claim upon which relief can be granted.

 The February 23 Order also consolidated plaintiffs' 1987 claims against the various Department of the Interior officials with plaintiffs' 1984 claims against those officials. Defendants in these consolidated cases move to dismiss or for summary judgment. For the reasons stated in this Memorandum, an accompanying Order grants that motion and dismisses both complaints without prejudice.

  I.

 Plaintiffs have attempted to maintain a continuous anti-nuclear demonstration in front of the White House, along Pennsylvania Avenue, and in Lafayette Park. One of the individual plaintiffs commenced his vigil in 1981; other plaintiffs joined throughout the following six years. The February 23, 1988 Order recounts in some detail the factual circumstances of plaintiffs' vigil and of the communicative activity in which they are engaged. The complete factual narrative is not repeated here.

 Over the course of their vigil, plaintiffs and federal law enforcement officials have engaged in an ongoing confrontation arising from plaintiffs' exercise of First Amendment rights. At the core of this chronic struggle lie several Department of the Interior regulations that establish the time, place, and manner of First Amendment activity in Lafayette Park. See 36 C.F.R. § 7.96(g)(5) (1987). Among other things, these regulations specify the size and number of signs that may be in the possession of an individual in the park and require that someone "attend" the signs at all times. See 36 C.F.R. § 7.96(g) (5) (x) (B) (2). For purposes of the regulation, to "attend" one's sign is to remain within three feet of it. Id. Most importantly, for purposes of this litigation, the regulations proscribe "camping" in Lafayette Park. See 36 C.F.R. §§ 7.96(g) (5) (x), 7.96(i).

 It is undisputed that plaintiffs have been repeatedly warned, cited, arrested, and convicted for violating one or another of these regulations. Plaintiff Thomas alone has been tried for such infractions in this Court at least a dozen times since 1982. See Federal Defendants' Motion to Dismiss or for Summary Judgment, Statement of Material Facts, paras. 1-10 (recounting specific instances of citation and arrest).

 Plaintiffs challenge these regulations on two fronts. Claiming a cause of action under 42 U.S.C. §§ 1983, 1985(3), and 1986, as well as Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and various common law tort theories, plaintiffs seek damages both against those responsible for promulgating the regulations and against those who have enforced them against participants in the vigil. Moreover, plaintiffs pray for declaratory and injunctive relief invalidating the regulations themselves on constitutional grounds.

 II.

 Plaintiffs' damage claims against the federal defendants must fail. Those claims center on a theory that the regulations themselves, and the emergent pattern of their enforcement, reveal a conspiracy among Department of the Interior and Park Police officials to quell plaintiffs' twenty-four hour First Amendment vigil in Lafayette Park. The 1987 complaint enlarged the conspiracy theory to embrace private defendants who allegedly contributed to the plot by publishing unflattering criticism of plaintiffs' demonstration and the content of their expression.

 Neither the 1984 nor the 1987 complaint, however, satisfies the standards that govern the assertion of such constitutional tort claims under sections 1983 or 1985(3). As elaborated in some detail in the February 23, 1988 Order, section 1983 cannot support an action against federal actors arising out of actions taken under color of federal law, as is the case when federal officials promulgate and then enforce a federal regulation. See Thomas v. News World Communications, 681 F. Supp. 55, 67 (D.D.C. 1988), and cases there collected.

 Moreover, again as discussed in the previous Order, the claims advanced in both actions fall short of the heightened pleading standard imposed on civil rights complaints under Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985), and Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 258 (D.C. Cir. 1987). Indeed, as Martin emphasizes, the policies underlying the imposition of a heightened pleading standard are most compelling where, as here, civil rights claims are brought against a public official. The requirement that plaintiffs asserting such claims "come forward with 'nonconclusory allegations of evidence [if they are] to proceed to discovery on the claim'" operates by design "to protect federal officials' freedom of action from the 'fear of damage suits.'" Martin, 830 F.2d at 257 (quoting Hobson, 737 F.2d at 29), 250 n.32 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). The heightened pleading standard in actions against government officials also serves to shield public officials from becoming unduly enmeshed in protracted discovery. See id. at 257. None of the damage claims can survive defendants' motion to dismiss.

 III.

 Plaintiffs' claim for injunctive and declaratory relief raises closer questions. Plaintiffs claim that the regulation codified at 36 C.F.R. § 7.96(g)(5)(x)(B), which prohibits the placement of unattended signs in Lafayette Park, "plac[es] arbitrary, capricious, and unwarranted restrictions" on those who "wish[] to demonstrate" there. 1987 Complaint at para. 64. Plaintiffs imply that abusive and selective enforcement of this regulation, id. at para. 65, has resulted in an unconstitutional infringement of their First Amendment rights, id. at para. 107. Similarly, plaintiffs cite numerous arrests by Park Police officers for violations of the "camping" and "storage of property" regulations, codified at 36 C.F.R. § 7.96(i), to support a general allegation that these regulations are being enforced in a manner that violates the First Amendment. It is beyond question that all three regulations constitute valid time, place, and manner restrictions on the exercise of First Amendment rights in Lafayette Park. The constitutionality of the "camping" regulations has been explicitly upheld by the Supreme Court. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984) (" CCNV "). Plaintiffs acknowledge the Supreme Court's ruling on this question. See Plaintiffs [sic] Opposition to Federal Defendants' Motion to Dismiss or for Summary Judgment [hereinafter Plaintiffs' Opposition (2)] at 26 n.10.

 The challenged three-foot sign attendance requirement, codified at 36 C.F.R. section 7.96(g)(5)(x)(B)(2), was upheld against constitutional challenge in this Court in litigation brought by several of these same plaintiffs in United States v. Musser, Cr. No. 87-157 (D.D.C. June 17, 1987) (Richey, J.). See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and a Temporary Restraining Order at 4. Plaintiffs advance no argument compelling a contrary ruling in this action. It is important to note, in this regard, that the CCNV Court made it clear that the judiciary is not to substitute its own judgment for that of the Department of the Interior by evaluating the wisdom and necessity of protective parkland regulation such as the "unattended structure" proscription plaintiffs now challenge. CCNV, 468 U.S. at 299.

 Plaintiffs' challenge to the Park Police's enforcement of these indisputably valid regulations against them raises more difficult questions. Plaintiffs allege a pattern of arrests and seizures of property that exceed, in their view, the appropriate scope of enforcement of the regulations. See, e.g., Complaint (1) at paras. 64-71. Relying on that pattern, plaintiffs claim that defendant Hodel and two Assistant Solicitors for the Department of Interior, as the ultimate supervisors of the Park Police, have pursued a policy intended to prohibit demonstrations and protests altogether in Lafayette Park "on an incremental basis." See id. at paras. 84-86. Yet, central to plaintiffs' claims, as expressed in both actions, lies their contention that

 
the [Lafayette Park] regulations have . . . had the propensity or effect to be enforced in such a manner as to effectively disrupt or terminate every . . . form of legitimate communication in which plaintiffs were engaged . . ., as well as subjecting plaintiffs to unend[ing] mental anguish, and a judicial system whose patience for "repeat offenders" might be wearing a bit thin.

 Plaintiffs' Statement of Material Facts in Dispute, filed with Plaintiffs' Opposition to Federal Defendants' Motion to Dismiss, or for Summary Judgment (No. 87-1820) (filed Oct. 28, 1987) [hereinafter Plaintiffs' 2d Statement of Facts] at para. 22.

 Plaintiffs thus raise a serious vagueness challenge to the regulations. Regulations of the sort at issue here are criminal laws. "'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.'" Bouie v. City of Columbia, 378 U.S. 347, 351, 12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964) (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939)). In order to conform to the due process component of the Fifth Amendment, a criminal provision must

 
define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

 Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (citing, inter alia, Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) and Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972)). Accordingly, under the void-for-vagueness doctrine, criminal statutes, as well as administrative regulations carrying penal sanctions, must be held unconstitutional when they fall short of this standard. See Grayned, 408 U.S. at 108. Vagueness is an especial evil where the criminal provision "'abut[s] upon sensitive areas of basic First Amendment freedoms' [because] it 'operates to inhibit the exercise of [those] freedoms.'" Id. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964), and Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961)). Vague time, place, and manner regulations cause citizens to steer wider of the unlawful zone than they would if the boundaries of the forbidden areas were clearly marked. See United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 577-81, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973) (hereinafter Letter Carriers) (subjecting Civil Service regulation that prohibits participation in partisan politics to scrutiny under vagueness doctrine and concluding that regulation is constitutional); Keeffe v. Library of Congress, 250 U.S. App. D.C. 117, 777 F.2d 1573, 1581 (D.C. Cir. 1985) (applying "the degree of precision required by Letter Carriers " to all regulations "validly promulgated under an enabling statute").

 In Kolender v. Lawson, supra, the Supreme Court observed that, although the vagueness doctrine "focuses both on actual notice to citizens and arbitrary enforcement," its most important aspect "'is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.'" 461 U.S. at 357-58 (quoting Smith v. Goguen, 415 U.S. 566, 574, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974)). Kolender held unconstitutionally vague a California penal statute that required persons who loitered or wandered on the streets to provide a "credible and reliable" identification and to account for their presence when detained by a police officer. Finding that the "credible and reliable" standard provided insufficient particularity "for determining what a suspect has to do in order to satisfy the requirement," the Court ruled the statute "unconstitutionally vague on its face because it encourages arbitrary enforcement. . . ." Id. at 358, 361.

 Plaintiffs here report a series of incidents over the past six years in which one, some, or all of them were arrested, threatened with arrest, or otherwise confronted by Park Police officers regarding alleged violations of the Lafayette Park regulations. See Memorandum Opinion, Report & Recommendation of Magistrate Burnett (No. 84-3552, filed Jan. 23, 1987) at 8-14 (summarizing factual allegations contained in 1984 complaint); Plaintiffs' Motion for Additional Discovery and for Leave to Perfect Service of Process, Statement of Claims and Issues for Trial, and Response to Magistrate's Report and Recommendations (filed in 84-3552 on March 6, 1987 by counsel Mark Venuti) at 17-20 (characterizing defendants' reaction over time to plaintiffs' persistent demonstration as a "campaign of harassment and unlawful arrest"); Plaintiffs' 2d Statement of Material Facts at paras. 2-12 (narrating incidents in 1986 and 1987). Defendants do not contest the claim that plaintiffs have been repeatedly arrested for violations of the "camping" and other regulations and have had property seized by Park Police in conjunction with their expressive activities in Lafayette Park. See Federal Defendants' Statement of Material Facts Not in Dispute (filed August 29, 1986, in C.A. No. 84-3552) [hereinafter Defendants' 1st Statement of Facts] at para. 2; Federal Defendants' Statement of Material Facts Not in Dispute (filed in C.A. No. 87-1820) [hereinafter Defendants' 2d Statement of Facts] at paras. 1-10. Defendants do, however, deny that the regulations, as written or as enforced against plaintiffs, are unconstitutionally vague. See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and Temporary Restraining Order at 23.

 Plaintiffs maintain that they sincerely want to conduct their demonstration within the boundaries of legitimate time, place, and manner restrictions. They contend that they have attempted to "clarify with the Secretary of Interior or his delegates the terms and conditions which would have enabled a law abiding person to accommodate a protest like [plaintiffs'] with the valid laws regulating the use of public parks." Memorandum in Support of Plaintiff's [sic] Notice of Filing [hereinafter Notice of Filing] at 3. Indeed, plaintiffs proffer evidence of persistent correspondence to this end with, among others, the Assistant Secretary for Fish and Wildlife and Parks, id. at Exhibit 6 (letter from plaintiffs dated July 21, 1984), defendant Secretary of the Interior, id. at Exhibit 10 (letter from plaintiffs dated April 28, 1986), the Director of Public Affairs for the National Park Service, id. at Exhibit 13 (letter from plaintiffs dated May 17, 1986), and defendants' counsel, id. at Exhibit 19 (letter from plaintiffs' counsel dated March 26, 1987). These letters reveal a sustained effort by plaintiffs to ascertain the precise meaning and scope of the Lafayette Park regulations in order to avoid both criminal sanctions and the concomitant interruption of their expressive demonstration.

 Plaintiffs' uncertainty centers on two particular elements of the Park regulations: the ban on "camping" codified at 36 C.F.R. section 7.96(i) and the ban on the storage of personal property, contained within the ban on camping. See Plaintiffs' Response to Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and Temporary Restraining Order (filed in 87-1820, July 27, 1987 at 2-3). The regulation provides:

 
Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep . . ., or storing personal belongings. . . .

 36 C.F.R. § 7.96(i).

 Defendants and others associated with the Department of the interior have made a considerable effort to specify the acts that, in their view, fall within the area of legitimate expressive activity untouched by these regulations. Although they have refused to meet with plaintiffs to discuss the restrictions in person, defendants have engaged in extensive correspondence with plaintiffs and their representatives regarding the precise requirements imposed by the "camping" and "storage of property" rules. See Federal Defendants' Opposition to Motion for Preliminary Injunction at Exhibits 3-9. For example, towards the end of March 1987, the Department of the Interior issued a memorandum entitled "Permit Conditions" to demonstrators in Lafayette Park, which memorandum plaintiffs acknowledge having received. Id. at Exhibit 3; see Plaintiffs' Notice of Filing at Exhibit 15 (letter dated March 27, 1987 from plaintiffs to official who signed memorandum and referring to contents). The memorandum reminds all demonstrators that their activities are subject to, among other things, the proscription of "camping or using park land for living accommodations purposes." Further, the memorandum gives notice that the Regional Director of National Capital Parks had imposed additional conditions on all demonstrations, including the following:

 
Property may not be stored in the Park, including, but not limited to construction materials, lumber, paint, tools, household items, food, tarps, bedding, blankets, sleeping bags, luggage, and other personal property. (In this regard, certain personal property that is reasonably required by a demonstration participant during any one 24-hour period will not be considered to violate this permit condition. Such property may include items such as a coat, a thermos, and a small quantity of literature. However, the quantity of these items may not exceed that which is reasonably necessary in a 24-hour period) . . . .

 Defendants' Opposition, Exhibit 3 at 2.

 Defendant Robbins, Assistant Solicitor for National Capital Parks, Department of the Interior, communicated a similar definition in May of 1986 to plaintiff Picciotto in response to her letter of April 28, 1986 requesting a statement about "precisely what is meant by the term 'storage of personal property.'" Robbins replied:

 
The storage of property regulations . . . do not prohibit the storage of a modest quantity of . . . items . . . . Specifically, it is my position that you are permitted to have a limited quantity of literature, writing material, rainwear, an umbrella, and a couple of thermoses containing coffee and lunch, and a camera and a tape recorder, if you choose. Also I do not believe that it is unreasonable to have small quantities of plastic to cover those items in inclement weather.

 Id. at Exhibit 4. This letter appears to summarize the Department of Interior's position with respect to the nature of personal property acceptable under the "storage" regulations. Moreover, Interior officials made clear that "personal property and literature that is actually in use or that will be reasonably required during any one 24-hour period is not considered to violate the storage violations." Id. at Exhibit 6 (letter dated May 15, 1986, from Interior Solicitor to Arthur B. Spitzer, Legal Director, ACLU). This position is repeated in letters from the Department to various plaintiffs and to interested parties throughout May of 1986. See id. at Exhibits 5-7. This correspondence suggests that, at least as between plaintiffs and policymakers within the Department of the Interior, an understanding has been attempted concerning which items of personal property demonstrators may possess.

 Yet, a crucial area of uncertainty remains. Resolving which items may accompany a demonstrator does not clarify the quantity of possessions a demonstrator may maintain in Lafayette Park. Responding to a letter from the ACLU to the Chief of the United States Park Police questioning plaintiffs' repeated arrests, an Assistant Solicitor, National Capital Parks, asserted that

 
[plaintiff] Picciotto frequently has in her possession a large quantity of bags and boxes containing numerous personal belongings. The problem is not so much the nature of the items Ms. Picciotto has in her possession but the quantity of items, a quantity that could not realistically be used in the space of one day. When Ms. Picciotto has a quantity of these items in her possession in the Park, she is in violation of the storage regulations and is subject to appropriate enforcement action.

 Id. at Exhibit 6. The Solicitor could be no more explicit in defining the precise "quantity" of permitted items that would render a demonstrator vulnerable to criminal sanctions than to suggest that Picciotto "limit the quantity of materials she keeps in Lafayette Park." Id. Nonetheless, he maintained, the position that literature or personal property "reasonably required during any one 24-hour period is not considered to violate the storage regulations . . . has been communicated to Park Police and forms the touchstone for their enforcement of the storage regulations." Id.

 Thus, like the identification regulation at issue in Kolender, supra, the camping and storage regulation presently in dispute vests significant discretion in the police to determine whether an individual demonstrator's conduct conforms to the law being enforced. According to the California Court of Appeals, "credible and reliable" identification was "identification 'carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself.'" Kolender, 461 U.S. at 357 (quoting People v. Solomon, 33 Cal. App. 3d 429, 108 Cal. Rptr. 867 (1973)). It was left to the California police to decide whether a suspect had provided "credible and reliable" identification, just as the Lafayette Park regulations delegate to the U.S. Park Police the decisions as to how much personal property one "reasonably require[s] during one 24-hour period" or what constitutes a living accommodation. Kolender held that this delegation "necessarily 'entrust[s] lawmaking "to the moment-to-moment judgment of the policeman on his beat."'" Id. at 361 (quoting Smith, 415 U.S. at 575, quoting Gregory v. Chicago, 394 U.S. 111, 120, 22 L. Ed. 2d 134, 89 S. Ct. 946 (1969) (Black, J., concurring)).

 The same flaw threatens to render the camping and storage regulations unconstitutionally vague. As was true of the Kolender statute, the Park regulations

 
"furnish[] a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure'" . . . and "confers on police a virtually unrestrained power to arrest and charge persons with a violation."

 Id. at 360 (quoting, inter alia, Papachristou, 405 U.S. at 170, and Lewis v. City of New Orleans, 415 U.S. 130, 135, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974) (Powell, J., concurring in the result)). Even absent a finding that the Park Police officers have taken advantage of such opportunity in dealing with plaintiffs, the Department of the Interior, like the State of California, must "establish standards by which the officers may determine whether the suspect has complied with the . . . [regulations]." Id. at 361.

 Plaintiffs' experience proves that violation of the Lafayette Park regulations results in repeated deprivation of liberty through arrest, seizure of property, and, perhaps most seriously, deprivation of access to an important public forum for the exercise of First Amendment rights. Were the camping regulation to stand only on its own terms, the regulation's enforcement might well be enjoined on the grounds that its proscription is too vague to serve the interest, emphasized in Kolender, of restraining the prosecutorial discretion exercised by the individual Park Police officer on his or her own beat.

 Nonetheless, precedent in this area teaches that the potentially unconstitutional vagueness of a regulation may be ameliorated through procedures providing an avenue whereby an authoritative interpretation of the restriction may be obtained before an individual hazards conduct that may fall within its proscriptive scope. In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982), the Supreme Court rejected a pre-enforcement facial challenge on First Amendment overbreadth and vagueness grounds to a municipal ordinance that required businesses wishing to sell drug paraphernalia to secure a license to do so. Sale of such items without a license exposed the vendor to daily fines. Reversing a Court of Appeals decision that the regulation was unconstitutionally vague, the Court observed:

 
The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depends in ...

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