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March 31, 2000


The opinion of the court was delivered by: Paul L. Friedman, District Judge.

Each week, an estimated 500 private and guided group tours traverse the United States Capitol, reflecting on the historic significance of such areas as the Rotunda, the Washington cornerstone, Statuary Hall and the old Supreme Court chambers. Defendants' Statement of Material Facts About Which There is No Genuine Issue ("Defs.' Statement of Undisputed Facts") ¶ 2. In any given year, the United States Capitol welcomes over 1.5 million visitors.
Unlike the grounds surrounding the Capitol, which historically have been the site of numerous demonstrations, there has been a ban on demonstrations inside the Capitol since 1946 when Congress decreed: "It shall be unlawful for any person or group of persons willfully and knowingly — . . . to parade, demonstrate, or picket within any of the Capitol Buildings." 40 U.S.C. § 193f(b)(7). The United States Capitol Police are responsible for enforcing this ban. 40 U.S.C. § 212a. Believing that the Capitol Police needed guidance in determining what behavior constitutes a "demonstration," the United States Capitol Police Board issued a regulation that interprets "demonstration activity" to include:
parading, picketing, speechmaking, holding vigils, sit-ins, or other expressive conduct that convey[s] a message supporting or opposing a point of view or has the intent, effect or propensity to attract a crowd of onlookers, but does not include merely wearing Tee shirts, buttons or other similar articles of apparel that convey a message.

Traffic Regulations for the Capitol Grounds § 158; see Declaration of Inspector Christopher M. McGaffin ("McGaffin Decl.") ¶ 3.*fn1 According to the government, the ban on demonstration activities includes prayer "unless it is conducted in the authorized use of the Chapel, or in a designated room upon invitation of a Member." Defs.' Statement of Undisputed Facts ¶ 8.*fn2

As the tour group arrived at Statuary Hall, another Capitol Police officer approached Reverend Bynum and, after determining that his group had been seen praying elsewhere in the building, told him that praying in the Capitol was illegal because the Capitol Police consider praying to be a form of prohibited demonstration. Pl.'s Statement of Undisputed Facts ¶¶ 38-42. After the officer told Reverend Bynum he would be arrested if the praying continued, Reverend Bynum and the tour group continued their prayer tour of the Capitol, but omitted the outward appearance of praying: they no longer folded their hands, closed their eyes or bowed their heads. Id. ¶¶ 43-46. While Reverend Bynum and his group were able to finish their tour, their perception was that they did so "under surveillance by United States Capitol Police officers." Id. ¶ 47.
After the November 3, 1996 incident, Reverend Bynum's legal counsel wrote to John T. Caulfield, General Counsel of the United States Capitol Police Board, regarding Reverend Bynum's experience. Plaintiff's Motion for Preliminary Injunction ("Pl.'s Mot. for Prelim. Injunction"), Exh. 1 (Declaration of Reverend Pierre Bynum) ¶¶ 47-48. In response, Mr. Caulfield informed Reverend Bynum's counsel that certain changes regarding tours in the Capitol had been instituted in order to accommodate the significant crowds that visit the Capitol during peak season. Mr. Caulfield's letter also spoke to the regulation that led to the November 3 incident, suggesting that the Capitol Police believe that prayer is prohibited in the Capitol:
As you may be aware, demonstrations are prohibited in the U.S. Capitol and the Capitol buildings. Therefore, tours would be a permissible activity provided that they are not a demonstration that is conducted in such a manner as to have the purpose, propensity or effect of drawing a crowd of onlookers or involves expressive conduct that conveys a message supporting or opposing a point of view.
Pl.'s Mot. for Prelim. Injunction, Exh. 2 (May 2, 1997 letter from John T. Caulfied, United States Capitol Police, to James Matthew Henderson, Sr., American Center for Law and Justice). After receiving the letter from Mr. Caulfield, plaintiff filed this lawsuit.
A. First Amendment Forum ...

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