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.
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.
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.