Plaintiff, an artist and president of an organization called Artists' Response to Illegal State Tactics ("A.R.T.I.S.T."), challenges the validity of an amended Capitol Grounds Regulation that created a no-demonstration zone within the 250-foot perimeter of the United States Capitol building. He also seeks to recover damages for his 1997 arrest pursuant to the original regulation. In an Opinion issued on March 14, 2000, I held the original regulation to be unconstitutional on its face and permanently enjoined its enforcement. See Lederman v. United States, 89 F. Supp.2d 29 (D.D.C. 2000). The federal defendants *fn1 have moved for reconsideration as to the public forum aspect of that ruling, or in the alternative, for clarification as to the specific United States Capitol Grounds areas which constitute a traditional public forum for First Amendment purposes. Because I remain unpersuaded by the federal defendants' arguments that plaintiff was arrested in a non-public forum, I will deny their motion for reconsideration. I will, however, clarify that, to reach my decision, I need have concluded only that the sidewalk in front of the Capitol steps, on which plaintiff was arrested in 1997 and on which he intended to demonstrate in 1999, constitutes a traditional public forum.
Two days after I issued the March 14, 2000 ruling, the Capitol Police Board amended the Capitol Grounds Regulation. Plaintiff has amended his complaint to challenge the amended regulation. The federal defendants (hereinafter, "defendants") have moved to dismiss, or in the alternative, for summary judgment on plaintiff's amended complaint. Plaintiff has cross-moved for summary judgment on his claim for declaratory and injunctive relief as to the amended regulation, and for partial summary judgment as to liability on his damages claims against the federal defendants. *fn2 Because I find that the amended regulation is reasonably related to the purpose of the enabling statute, but is not narrowly tailored to further a significant governmental interest, and that plaintiff has established viable damages claims as to certain constitutional torts, parties' cross-motions for summary judgment will be granted in part and denied in part. As in my March 14, 2000 ruling, I also will issue a declaratory judgment invalidating the offending regulatory language on its face as contrary to the First Amendment and permanently enjoin its enforcement.
The factual circumstances that initially gave rise to this action are set forth in detail in the March 14, 2000 Memorandum Opinion, Lederman, 89 F. Supp.2d at 30-34. On March 11, 1997, plaintiff was arrested by two Capitol Police officers, Loughery and McQuay, while peacefully leafleting and holding a small sign on a sidewalk immediately in front of the House steps at the south end of the Capitol building. A District of Columbia Superior Court Hearing Commissioner dismissed the charges against plaintiff on November 30, 1998, holding that the Capitol Grounds Regulations under which plaintiff had been arrested, Article XIX, Capitol Grounds Regulation § 158(a), was unconstitutional both on its face and as applied to plaintiff's free speech activity. Plaintiff, who intended to leaflet in the same area in March 1999, brought his initial suit to preliminarily and permanently enjoin enforcement of the Capitol Grounds Regulation and to recover damages for his 1997 arrest. *fn3
The specific Capitol Grounds Regulation at issue in the first case created a no-demonstration zone within the 250-foot perimeter of the Capitol building. This regulation imposed an outright ban on the following types of activities within the zone:
[P]arading, picketing, speechmaking, holding vigils, sit-ins, or other expressive conduct that conveys a message supporting or opposing a point of view or has the intent, effect, or propensity to attract a crowd or onlookers, but does not include merely wearing Tee shirts, buttons, or other similar articles of apparel that convey a message.
Article XIX, Capitol Grounds Regulation § 158(a).
On cross-motions for partial summary judgment, I held that the creation of a no-demonstration zone around the Capitol was within the Police Board's statutory authority to enact. See Lederman, 89 F. Supp.2d at 33-35. I went on to hold, however, that the Capitol Grounds Regulation could not "pass muster under the far more exacting standards of the First Amendment." Id. at 35, 41-42. In reaching that conclusion, I first found that defendants had failed to rebut the presumption that the sidewalk on which plaintiff was arrested in 1997 was a traditional public forum for First Amendment purposes. Id. at 35-37. I then held that the Capitol Grounds Regulation was not a "reasonable time, place, and manner" restriction because, although the regulation left open ample alternative channels of expression, the portion of the regulation under which plaintiff was arrested in 1997 was not narrowly tailored to serve a significant government interest. Id. at 37-42.
In conducting my narrow tailoring inquiry, I first observed that the Capitol Grounds Regulation, via § 158(a)'s definition of "demonstration activity," banned "three general categories of activity within 250 feet of the Capitol: (1) 'parading, picketing, speechmaking, holding vigils, sit-ins'; (2) 'other expressive conduct that conveys a message supporting or opposing a point of view'; and (3) other expressive conduct that 'has the intent, effect, or propensity to attract a crowd or onlookers[.]'" Id. at 39 (quoting Article XIX, Capitol Grounds Regulations § 158(a)). I then held that plaintiff's leafleting fell into the second, and most expansive, category of banned speech (i.e., speech that constituted "other expressive conduct that conveys a message supporting or opposing a point of view"). Id. Accordingly, my analysis focused on that portion of the regulation. Although I agreed with the federal defendants that the Capitol Grounds Regulation left open adequate alternative channels of expression, I nevertheless concluded, after analyzing relevant Supreme Court and D.C. Circuit precedent, that such a broadly-worded prohibition on speech within a traditional public forum was "antithetical to the narrow tailoring demanded by the First Amendment." Id. at 42. Accordingly, I struck down on its face the Capitol Grounds Regulation's ban on "other expressive conduct that conveys a message supporting or opposing a point of view" within the 250-foot radius of the Capitol and permanently enjoined future enforcement of that provision of the regulation.
On March 16, 2000, two days after my ruling, the Capitol Police Board amended § 158(a)'s definition of demonstration activity (hereinafter, the "amended regulation"). The amended regulation became effective on March 30, 2000. The following changes were made, inserting the bolded language and dropping the stricken language:
[P]arading, picketing, leafleting, speechmaking, holding vigils, sit-ins, or other expressive conduct or speechmaking that conveys a message supporting or opposing a point of view and or has the intent, effect, or propensity to attract a crowd or onlookers, but does not include merely wearing Tee shirts, buttons, or other similar articles of apparel that convey a message.
Article XIX, Capitol Grounds Amended Regulation § 158(a). The amended regulation alters the definition of prohibited demonstration activity in three ways. First, it adds leafleting to the list of specifically prohibited activities included in the first category of speech proscribed under the original regulation. Second, by changing the disjunctive "or" to the conjunctive "and," the amended regulation merges the second and third categories of speech into a catch-all provision banning "other expressive conduct" that both "conveys a message supporting or opposing a point of view" and "has the intent, effect or propensity to attract a crowd or onlookers." Third, the amended regulation removes the specific ban on "speechmaking" from category one and incorporates it into the new catch-all provision.
Soon after notice of the amended regulation was published, plaintiff amended his complaint to assert that the new definition of "demonstration activity" was unconstitutional. (Am. Compl. ¶¶ 1, 11, 33-36.) To establish his standing to bring such a challenge, plaintiff stated that he intends to return to Washington in the future to leaflet in the current no-demonstration zone. (Id. ¶ 36.) Plaintiff also broadened his allegations about the types of activities in which he intends to engage, characterizing it as "constitutionally-protected demonstration activity . . . including, but not necessarily limited to, leafleting and holding signs." (Id.) The amended complaint retains those counts of the original complaint which sought damages for his 1997 arrest.
Aside from the federal defendants' request that I reconsider or clarify my earlier ruling, defendants have moved for summary judgment on all counts of plaintiff's amended complaint. Plaintiff has cross-moved for partial summary judgment. Specifically, he seeks summary judgment on Counts I and II of his amended complaint, which challenge the legality of § 158(a)'s newly amended definition of "demonstration activity," summary judgment on Count III as to the federal officers' liability under the Federal Tort Claims Act, 28 U.S.C. § 2674 (West 2000), and summary judgment on Counts IV and V as to the individual Capitol Police officers' liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
I. Motion for Reconsideration or, in the Alternative, for Clarification
At the time the Capitol Police Board promulgated the amended regulation, the federal defendants moved that I reconsider or, in the alternative, clarify my original public forum ruling because "the public forum question covers several different types of property encompassed within the no-demonstration zone - - the steps going up to the House and Senate buildings on the east and west sides of the Capitol, the large road on the east side of the Capitol, the sidewalks on the East side of the Capitol, and the grassy areas . . . ." (Federal Defs.' Mem. Supp. Reconsideration or Clarification at 2.) The federal defendants have requested that I clarify my earlier decision by "address[ing] the nature of [the] forum that each constitutes . . . ." (Id.) Plaintiff opposes the motion, but acknowledges that the public forum status of the House and Senate steps are "not at issue in this action, and they are not affected by the Court's ruling." (Pl.'s Opp'n to Federal Defs.' Mot. to Reconsider or Clarification at 4.
While the federal defendants' desire for a ruling on the public forum status of various locations on the Capitol Grounds is understandable, in reaching my conclusion that plaintiff's speech occurred in a traditional public forum, it was only necessary for me to address the public forum status of the sidewalk that juts out several feet from the House and Senate steps and runs along the East Front of the Capitol (hereinafter, the "East Front Sidewalk"). It was there, on the portion of the East Front Sidewalk in front of the House steps, that plaintiff was arrested in March 1997, and it is where plaintiff intended to demonstrate again in March 1999. Indeed, in United States v. Grace, 461 U.S. 171, 181-84 (1983), the Supreme Court addressed the constitutionality of a regulation governing demonstration activity on the entire Supreme Court grounds only as it applied to the sidewalk on which the two demonstrators challenging the regulation had engaged in their free speech activity. The D.C. Circuit adopted a like approach in Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992), addressing the public forum status of the sidewalk on the grounds of the Vietnam Veterans Memorial that plaintiff had been arrested on, but declining to address the public forum status of the "curvilinear paths leading to the Memorial wall." Thus, I will decline the federal defendants' invitation to rule explicitly on the public forum status of locations other than the East Front Sidewalk.
The federal defendants have asked that I reconsider my ruling that the East Front Sidewalk is a traditional public forum, essentially putting forth the same line of argument that I rejected in my March 14, 2000 ruling. They concede that the grassy areas of the Capitol Grounds are traditional public fora, but maintain that other paved areas around the Capitol Grounds, including the Capitol sidewalk, are not public fora because they are physically and functionally distinguishable from regular streets and sidewalks. While I respect the federal defendants' persistence, I still cannot accept their position.
I agree with the federal defendants' contention that the East Front Sidewalk is physically and functionally distinguishable from an ordinary public sidewalk in several respects. The typical public sidewalk, after all, does not abut the steps to the Capitol building. Moreover, the East Front Sidewalk, unlike other public sidewalks, is located well within the outer boundaries of the Capitol Grounds and does not run parallel to any city street. The sidewalk in Grace, by contrast, had "no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave." Grace, 461 U.S. at 180; cf. Henderson, 964 F.2d at 1180-82 (finding that leafleting on the sidewalks bordering Constitution Avenue "within an area officially designated by the National Park Services as the Vietnam Veterans Memorial" was leafleting in a traditional public forum in part because the sidewalks at issue "are used by thousands of pedestrians every year, including not only Memorial visitors, but people going other places"). Because the East Front Sidewalk is separated from the city streets surrounding the Capitol Grounds, it is reasonable to assume that it is used primarily by people coming to and from the Capitol building. The physical location and functional use of the Capitol sidewalk thus implies that it is not an ordinary sidewalk.
As the federal defendants have recognized, however, the fact that the East Front Sidewalk is within an enclave of sorts is not dispositive of the public forum question, but is merely one factor to consider. Courts also consider the "objective use and purposes" of the property as well as whether the property "by history and tradition has been open and used for expressive activity[,] . . . [property such as] the outdoor grounds of a seat of legislative and/or executive power." Warren v. Fairfax County, 196 F.3d 186, 189-90 (4th Cir. 1999) (en banc). Thus, a sidewalk that is physically distinct from regular sidewalks because it is located within an enclave does not automatically lose its status as a traditional public forum. *fn4 One must also examine the nature of the enclave of which the sidewalk is a part.
The enclave in this case is part of the Capitol Grounds, the seat of our national legislature and an enduring symbol of our democracy. It is an area well-recognized as a situs that is inherently and uniquely suited for demonstration activity. See Lederman, 89 F. Supp.2d at 36 n.5 and cases cited therein. Moreover, the Capitol Grounds also have the physical characteristics of a traditional public forum because the large outdoor area surrounding the Capitol building is "merely a combination of the three prototypical examples of traditional public fora - - streets, sidewalks, and parks." Warren, 196 F.3d at 190.
The federal defendants argue that they have rebutted the presumption that the East Front Sidewalk is a traditional public forum because the objective use and purpose of the Capitol sidewalk is not akin to that of a regular city sidewalk. It is true that the D.C. Circuit has suggested that a piece of property that would normally be classified as a traditional public forum can lose that status if it is has a specialized use that substantially outweighs its public characteristics. For example, in declining to address the public forum status of the "curvilinear paths leading to the [Vietnam Veterans] Memorial wall" the D.C. Circuit opined that "their evidently more specialized use may outweigh the attributes that would otherwise mark them as public forums." Henderson, 964 F.2d at 1182 (emphasis added).
The federal defendants maintain that the East Front Sidewalk is dedicated to a special limited use because it is traveled mainly by those coming and going to the Capitol building. The sidewalk also serves as an access point for members of Congress to gain entry to the Capitol building. What the federal defendants fail to explain, however, is why these characteristics somehow deprive the sidewalk of its public forum status. In Warren, the sidewalks coursing through the mall in front of the Fairfax County Government Center Complex did not lose their public forum status simply because the people who used those sidewalks included those coming to or from the Complex or because legislators might use them before conducting government business. 196 F.3d at 188-90. One need only observe the East Front Sidewalk to see that many people who are not coming to and from the Capitol also use the sidewalk for a wide range of activities, from jogging to dog-walking. Thus, the outdoor mingling of the public, members of Congress, congressional staff, and the news media on the Capitol sidewalk implies that it is a particularly appropriate place for individuals to express their ideas and to petition the government. This is in contrast to areas in the interior of the Capitol, where heightened decorum is reasonably expected and greater limitations on expression have in turn been tolerated "in order to permit Congress peaceably to carry out its lawmaking responsibilities and to permit citizens to bring their concerns to their legislators." Bynum v. United States, 93 F. Supp.2d 50, 55 (D.D.C. 2000). The federal defendants have failed to rebut the presumption that the East Front Sidewalk is a traditional public forum. Accordingly, I will deny the their motion that I reconsider my holding that the East Front Sidewalk is a traditional public forum.
II. Cross-Motions for Summary Judgment
Defendants moved to dismiss plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (5) and (6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. I will consider defendants' motion as one for summary judgment, because I have not excluded matters outside the pleadings. See Fed. R. Civ. P. 12(b); Richardson v. Rivers, 335 F.2d 996, 998 (D.C. Cir. 1964); Batson v. Powell, 912 F. Supp. 565, 570 (D.D.C. 1996).
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant bears the initial burden of proving that there is "no genuine issue." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Once that burden has been met, the non-movant must "go beyond the pleadings and . . . designate 'specific facts showing that there is a genuine issue for trial.'" Id. The mere allegation of some factual dispute between the parties is not alone sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses" and it should be construed accordingly. Celotex, 477 U.S. at 323-324. In considering a summary judgment motion, a court is to believe "[t]he evidence of the non-movant . . ., and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. No genuine issue exists unless "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249.
A. Validity of the Amended Regulation
1. First Amendment Analysis of the ...