The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,
This matter comes before the Court on the defendants' Motion  for Summary Judgment. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. Accordingly, summary judgment will be issued in favor of the defendants on all of the plaintiffs' claims, and those claims will be dismissed with prejudice. The Court's reasoning is set forth below. As summary judgment requires that the factual record be construed in the light most favorable to the non-moving party, the factual background recited below is drawn from the plaintiffs' complaint, the plaintiffs' opposition to the defendants' motion for summary judgment, and the affidavits and exhibits thereto.
The Red Mass is an annual ceremony that marks the start of each new judicial year. Held on the Sunday before the first Monday in October, the Mass has in recent years taken place at St. Matthew's Cathedral in Northwest Washington, D.C., where it draws many prominent figures to attend. These have included the last two Presidents of the United States, Supreme Court Justices, judges from various state and federal courts, elected officials, foreign dignitaries, and prominent clergy. Brandt Decl. ¶ 7. The Mass is also open to members of the public to the extent the Cathedral, which has a capacity of around 1,000, can seat them. This year's Red Mass is scheduled to take place at the Cathedral on Sunday, October 1, 2006.
A bit of geography is in order to better understand the allegations in this case. The Cathedral is located at 1725 Rhode Island Avenue, in the Northwest quadrant of Washington, D.C. The Cathedral is on the north side of Rhode Island Avenue facing south-southeast. The block on which it sits is bounded by Connecticut Avenue on the west and 17th Street on the east. In addition to these streets, a person standing on the steps of St. Matthew's would see portions of M Street directly to the south, across the south sidewalk of Rhode Island Avenue. See, e.g., Mem. in Support of Motion  for Summary Judgment, Ex. G, Ex. H.
The United States Marshals Service, which is charged with protecting members of the federal judiciary, see 28 U.S.C. § 566(e)(1)(A), is tasked with the primary responsibility of providing security at the Red Mass, in coordination with other local and federal law enforcement agencies. In years when the President of the United States attends the Mass, such as 2005, all security measures are dictated by the United States Secret Service. Brandt Decl. ¶ 2. In providing security for the Mass, the Marshals have weighed a number of factors "to ensure that protective measures will be employed effectively and with a minimum [sic] disruption to the surrounding community." Brandt Decl. ¶5. The number of dignitaries attending the event "creates a substantial aggregate security threat," such that the Mass is "a reasonably likely target" for violence or other disruption. Id. ¶ 6.
According to the Marshals, the security policies and procedures in place at St. Matthew's Cathedral were substantially similar in 2003, 2004, and 2005, the years at issue in this case. According to the Marshals, they create a "controlled access area" encompassing both sides of Rhode Island Avenue in front of the Cathedral, between Connecticut Avenue and 17th Street. For roughly an hour before and an hour after the Mass, the controlled access area is closed to vehicular traffic, with the exception of authorized vehicles that drop off and pick up certain dignitaries at the Cathedral entrance. The only members of the public that the Marshals are supposed to allow into the area are those attending the Mass, or credentialed members of the media who have been pre-approved by diocesan press officials. See, e.g., Brandt Decl. In addition to this screening, members of the media are subject to having their equipment searched by the Marshals. The media are confined to a sub-area within the controlled access area, directly across from the Cathedral entrance on the south sidewalk of Rhode Island Avenue. In 2005, when the Secret Service was in charge of security, a separate area was marked off for demonstrators at the boundary to the controlled access area, on the south sidewalk of M Street. Brandt Decl. ¶ 17. While this area was reserved for protestors' use and was located directly across from the Cathedral entrance, protestors were allowed to move freely anywhere outside the controlled access area. Id. ¶ 18.
When fixing the boundaries of their controlled access area, the Marshals take into account the physical layout of the area, in conjunction with factors such as "emergency vehicle access, the potential for emergency evacuation of the attendees and other building occupants, and the set-off distances necessary to mitigate the effectiveness of a variety of weapons." Brandt Decl. ¶ 10.
Plaintiffs are Reverend Patrick Mahoney, a Presbyterian minister; Troy Newman, a fellow Christian; and the Christian Defense Coalition, an unincorporated religious association. Their "religious faith," Mahoney says, "demands of [them] that [they] pursue obedience to the biblical command not to remove the ancient landmarks, including the Ten Commandments," from public places. Mahoney Decl. ¶¶ 6-11. In large part because of court cases regarding the public display of depictions of the Ten Commandments, over the last several years both Mahoney and Newman have held public demonstrations and prayer vigils in support of the public display of the Commandments. Some of these demonstrations have taken place outside the Red Mass, where Rev. Mahoney and his compatriots have sought to convey their message to the many jurists in attendance, by, among other means, carrying signs and praying as a group.
Plaintiffs allege that the restrictions imposed by the Marshals Service at the 2003 and 2004 Masses, and by the Marshals Service and Secret Service at the 2005 Mass, worked a violation of their rights under the First and Fifth Amendments and under the Religious Freedom Restoration Act. They also contend that, contrary to defendants' assertions, in 2003 and 2004 the "controlled access area," to the extent it existed, was not clearly marked, and that the Rhode Island Avenue sidewalks were not generally closed to members of the public, who were left free to pass through the area or simply mill about. The Court will consider each Mass in turn.
Rev. Mahoney, his wife Kathleen, and several of their acquaintances arrived in the neighborhood of St. Matthew's Cathedral slightly over an hour before the 10 a.m. Mass was to begin. They had brought signs displaying messages about the Ten Commandments, and planned to display the signs as part of their demonstration. According to plaintiffs, Rev. Mahoney spoke with a Marshal, who told him that only people going to the Mass could walk down Rhode Island Avenue. Sullenger Decl. ¶ 14. When Rev. Mahoney asked how the Marshals could know that all the people on Rhode Island Avenue were attending the Mass, the Marshal replied that Rev. Mahoney and his companions could go into the Cathedral, or could stand across the street and watch, but could not stand on the street if they were displaying their signs. Id.
After that, Rev. Mahoney and his companions moved to the south sidewalk of Rhode Island Avenue. Rev. Mahoney, carrying a sign depicting the Ten Commandments, took up position next to the media, in an area in front of a police line. Sullenger Decl. ¶ 18. Marshals tried several times to remove Rev. Mahoney back outside the police line, and each time he crossed the police line and returned with his sign to the Rhode Island Avenue sidewalk. Sullenger Decl. ¶¶ 18-22. After several rounds of this cycle, the Marshals arrested Rev. Mahoney, on the grounds that he had crossed a police line. When other individuals attempted to cross that line or remain on the inside of it, they were ordered to return to the other side or face arrest. See, e.g., Sullenger Decl. ¶ 19. Several -- some of them holding signs -- persisted in trying to remain inside the police line, or sat down, or explicitly asked to be arrested. They were arrested by the Marshals and handcuffed. See, e.g., Sullenger Decl. ¶¶ 23-24.
Plaintiff Troy Newman was arrested, though he was not carrying a sign. He had approached the area where the arrests were taking place, from the inside of the police line, to take photos. A Marshal informed Newman that unless he was with the media, he had to "get out of here." Newman Decl. ¶ 40. When the Marshal asked Newman whether he was part of the media, Newman replied that he was acting on behalf of the press by documenting the situation and that he had the same right as the media to take pictures. Newman Decl. ¶ 42. The Marshal again asked Newman to identify a media outlet with which he was affiliated, asking, "Who are you with?" Newman gestured toward Rev. Mahoney and said "I know Rev. Mahoney." Id. ¶¶ 42-45. Newman was then arrested. Id. ¶¶ 46-50.
Rev. Mahoney has said that "there were absolutely no access restrictions or controls in place on October 5, 2003, when I arrived on the scene and when I first stood, adjacent to members of the media, on the sidewalk across from St. Matthew's Cathedral," Mahoney Supp. Decl. ¶ 3, and that "[t]here were no police lines at that time, or police tape marking off controlled areas." Id. at ¶ 5. Yet Rev. Mahoney initially said that when he arrived at the Cathedral, "vehicular traffic in front of the Cathedral was obstructed by crossbucks, and . . . portions of the sidewalks across from the Cathedral were marked by yellow tape." Mahoney Decl. ¶ 19. Plaintiffs have submitted considerable evidence in support of their allegation that access to Rhode Island Avenue was visibly restricted at the time plaintiffs arrived there. See, e.g., Amended Complaint ¶ 29; Exhibit to Sparks Decl.; Newman Decl. ¶ 19; Sullenger Decl. ¶ 10. Indeed, plaintiffs have submitted ample evidence that Rev. Mahoney ducked under a police line several times during the course of his protest. See generally Sullenger Decl.; Newman Decl.; Exhibit to Sparks Decl. Of course, pictures are sometimes worth a thousand words, such as the pictures showing the police tape, crossbucks, and orange cones that lined Rhode Island Avenue. See, e.g., photos attached to Sullenger Decl., Newman Decl., and Exhibit to Sparks Decl..
Plaintiffs also allege that "[d]efendants had not generally closed the sidewalk to use by the public." Mahoney 2d Supp. Decl. ¶ 6. They allege that pedestrians transited the sidewalk in front of the Cathedral or simply milled about. Exhibit to Sparks Decl.; Mahoney 2d Supp. Decl. ¶ 7; Newman Decl. ¶ 19. But plaintiffs' evidence is also replete with examples of the Marshals articulating a policy that prohibited members of the non-attending public from entering the controlled access area along Rhode Island Avenue. The only time plaintiffs allege that the Marshals knowingly allowed a member of the non-attending public to enter that area is when a Marshal told Rev. Mahoney that he could stand on the south Rhode Island sidewalk. This was an exception to the policy just articulated by the Marshal, and was quickly corrected by Marshals who instructed Mahoney to leave the area.
There were roughly 30 demonstrators outside the Cathedral that day. Brandt Decl. ¶ 20. Many of them are visible in photographs taken by Newman; several were holding signs identical to the one held by Mahoney, and they stood behind the police line, a few ...