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A.N.S.W.E.R. Coalition v. Kempthorne

March 20, 2008

A.N.S.W.E.R. COALITION, PLAINTIFF,
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



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

OPINION

Plaintiff A.N.S.W.E.R. (Act Now to Stop War and End Racism) Coalition ("ANSWER") filed this lawsuit against defendants Dirk Kempthorne, Secretary of the Interior, Mary Bomar, Director of the National Park Service ("NPS"),*fn1 and Mark Sullivan, Director of the United States Secret Service, seeking declaratory and injunctive relief on three claims, all alleging violations of the First Amendment and the Equal Protection Clause of the United States Constitution arising from policies and practices engaged in with respect to the Presidential Inaugural Parade in January 2005.*fn2 This matter is before the Court on defendants' motion for summary judgment and plaintiff's cross motion for partial summary judgment.*fn3 The Court previously addressed the justiciability of the claims in this case in an Opinion and Order dated June 13, 2007. See A.N.S.W.E.R. Coalition v. Kempthorne, 493 F. Supp. 2d 34 (D.D.C. 2007). The Court described the background of this case in that Opinion, so it will repeat only relevant portions here.

I. BACKGROUND

The 2005 Inauguration of President George W. Bush took place on January 20, 2005 here in Washington, D.C. The inaugural parade route included, as it always does, Pennsylvania Avenue between the United States Capitol and the White House. Since 1996, much of the Pennsylvania Avenue corridor, including Pershing Park, Freedom Plaza, the Navy Memorial and John Marshall Park, has been part of the Pennsylvania Avenue National Historic Park. See Declaration of Robbin Owen ("Owen Decl.") ¶ 14. It therefore is under the jurisdiction of the National Park Service, which generally is authorized to promulgate rules and regulations "for the use and management of parks[.]" 16 U.S.C. § 3. NPS issues regulations specifically with respect to the parklands in the National Capital Region and permits relating to activities within them. See generally 36 C.F.R. § 7.96(g). The Presidential Inaugural Ceremonies Act ("PICA"), 36 U.S.C. § 501 et seq., which was enacted in 1956, also governs inaugural events.*fn4

Plaintiff purports to represent "tens of thousands of political dissenters, anti-war activists and ordinary people compelled to collective action, among other reasons, by the war policies of the Bush administration and its refusal to bring troops home now from Iraq." Am. Compl. at 3-4. Plaintiff asserts that it has "concrete intentions to demonstrate at the upcoming Presidential Inauguration" on January 20, 2009 regardless of which party's candidate is elected, and that it advances this litigation to "vindicate the rights of all to equal access to the public parade portion of the Inaugural ceremony." Id. at 4.

Plaintiff alleges that it is the strict policy of the NPS not to accept any permit applications submitted more than one year in advance of the start date for any event on Park Services land. See Am. Compl. ¶ 9; PSMFD ¶ 4. Defendants agree that this is their policy. See Owen Decl. ¶ 12. Plaintiff argues that this policy is used to reject permit applications of organizations, "including groups engaged in political dissent." Am. Compl. ¶ 9.*fn5 Plaintiff also asserts that the policy is waived or disregarded for the Presidential Inaugural Committee ("PIC"), which is given priority over everyone else by being allowed to submit its permit application earlier than any other group, and that it then is given exclusive use of most of the parade route.

See Am. Compl. at 4 and ¶¶ 16, 29, 32, 33.

On November 12, 2003 and December 19, 2003, NPS submitted special event permit applications to itself, on behalf of the yet-to-be-formed PIC, in connection with the 2005 Inauguration. See Owen Decl., Exh. B ("November 12, 2003 NPS Application"); see also DSMF ¶ 1.*fn6 The application was "for the parade route from the National Capital Area, 3rd Street to 17th Street including sidewalks on both sides of the street, Lafayette Park, White House sidewalk[.]" DSMF ¶ 5 (citing and quoting the November 12, 2003 NPS Application). Plaintiff argues that the application submission was "outside the one year period and in violation of the generally applicable permitting regulations and policies." Am. Compl. ¶ 29.*fn7

Plaintiff notes that the NPS has a policy, codified in the regulations, that permits for special events and demonstrations have a maximum duration of three weeks. See PSMFD ¶ 5; see also 36 C.F.R. § 7.96(g)(5)(iv). The November 12, 2003 NPS/PIC application was "for the entire length of the Pennsylvania Avenue sidewalks (plus additional areas) for the six-month period from November 1, 2004 to April 1, 2005." Am Compl. ¶ 32 (emphasis added); see also DSMF ¶ 2.*fn8 Defendants have submitted a declaration stating that "based on past experience, the Park Service knew that set-up takes a substantial amount of time greater than three weeks for special events. Indeed, it expected that a reasonable anticipated set-up times [sic] would be from November 1, 2004-January 19, 2005 and that a reasonable anticipated dismantling times [sic] would be from January 21, 2005 to April 1, 2005." Owen Decl. ¶ 33.

On January 2, 2004, ANSWER filed a permit application with the NPS for 2005 Inauguration demonstration events and setup, covering a time period from January 1, 2005 to January 20, 2005. See Am. Compl. ¶¶ 10-11; see also DSMF ¶ 12; PSMFD ¶ 2. ANSWER's application "was not denied within 24 hours and was consequently 'deemed granted' pursuant to regulation." Am. Compl. ¶ 14.*fn9

By January 20, 2004, plaintiff alleges, the applications submitted by NPS to itself on behalf of the PIC were visible on the public boards maintained by NPS and on which applicants "can observe whether there are conflicting prior-in-time permit applications for any particular or desired space." Am. Compl. ¶¶ 15-16. Within a month of submitting its permit application, plaintiff therefore was aware of the conflicting NPS/PIC special event application encompassing some or all of the same areas as its own demonstration permit application.

ANSWER alleges that it made repeated requests of the NPS to identify what, if any, part of its permit would be revoked, but received no response. See Am Compl. ¶ 18; see also Owen Decl. ¶ 47. ANSWER requested "that the NPS convene a logistics meeting for their intended activities along the Inaugural Parade route" and "was advised that NPS would not provide information nor schedule the normal pre-determination multi-agency logistics meeting with protest organizers until after the Bush-Cheney PIC had determined what space it intended to take along the route . . ." Am Compl. ¶¶ 22, 26. A meeting was held on December 13, 2004 with plaintiff, representatives of the NPS, the United States Park Police and the Secret Service, but no representatives of the Bush-Cheney PIC were present. See id. ¶ 24. At that meeting, ANSWER was advised by NPS representatives that the NPS was meeting separately with and talking to the Bush-Cheney PIC and that "only based on those discussions would they be able to determine the status of the ANSWER Coalition's permit . . . ." Id. ¶ 26. There was a second logistics meeting held on December 20, 2004. See id. ¶¶ 38-39. Meanwhile, on December 15, 2004, NPS issued a permit to the Bush-Cheney PIC "for the parkland along the Inaugural parade route, including Pennsylvania Avenue National Historic Park." DSMF ¶ 8.*fn10

On December 15, 2004, NPS also sent a letter to plaintiff's counsel in response to a FOIA request for information regarding "all applications seeking the use of Federal parkland along Pennsylvania Avenue for the Presidential Inauguration on January 20, 2005." December 15, 2004 NPS Letter. The NPS letter was accompanied by five "responsive applications, in order of receipt: applications 04-0466 and 04-0634 by the NPS on behalf of the Presidential Inaugural Committee pursuant to the Presidential Inaugural Ceremonies Act, application 05-011 by A.N.S.W.E.R. Coalition, application 05-0004 by D.C. Chapter of Free Republic, and application 05-0005 by the Christian Defense Coalition." Id. At that point at the latest, then, plaintiff must have been aware that NPS deemed there to be an earlier permit application than the one that plaintiff had submitted. But plaintiff alleges that the response to their FOIA request "showed that ANSWER had first in time applications for public space in conformity with NPS regulations. It also showed that NPS had submitted permit applications to itself outside the one year period of the 2005 Inauguration on behalf of the PIC." PSMFD ¶ 18. Plaintiff argues that NPS "violated its own regulations for the benefit of PIC," and was giving PIC a higher priority than ANSWER under their "first come, first serve" policy. Id.

Plaintiff asserts that on December 23, 2004, NPS "revoke[d] ANSWER's permit" and offered ANSWER much more limited space for its use than it had requested in its January 2, 2004 permit application. See Am. Compl. ¶¶ 44-46; see also Owen Decl. ¶¶ 55-59; Exh. L to the Owen Decl. ("December 23, 2004 NPS Letter"). Defendants characterize this determination as the Park Service "grant[ing] in part the plaintiff's permit application." DSMF ¶ 13. Despite defendants' characterization of the action as "granting in part" the permit application, as noted above, applicable regulations provide that "[a]ll demonstration applications . . . are deemed granted, subject to all limitations and restrictions applicable to said park area, unless denied within 24 hours of receipt." 36 C.F.R. § 7.96(g)(3).*fn11 Accordingly, plaintiff's permit application had already been "deemed granted," and defendants therefore were, in fact, revoking it in part.

The December 23, 2004 letter revoking plaintiff's permit in part described those areas that would be available for ANSWER's use, and explained the defendants' view that the NPS/PIC permit application was first in time under the applicable regulations. The defendants' letter also assured plaintiff that "consistent with the First Amendment, the Presidential Inaugural Ceremonies Act and National Park Services regulations, the public and demonstrators -- regardless of their message -- will be fully allowed onto all of the many open areas on the Pennsylvania Avenue sidewalk on January 20, 2005." December 23, 2004 NPS Letter at 4; see also DSMF ¶ 10. Plaintiff responds that "NPS reiterated many times that all areas not permitted to PIC or another group or designated for the handicapped would be public. However, NPS refused to identify where these areas were. Almost all areas of public space were obstructed by PIC structures and NPS would not allow the general public to enter the space in front of PIC bleachers." PSMFD ¶ 26 (citing Sloan Affidavit at 5-6; Exhibit 57; Exhibit 58; Exhibit 59) (emphasis added). Plaintiff argues that "NPS had, in effect, closed off most of the public parade route for exclusive use by private Bush supporters." Id.

NPS sent a letter to plaintiff on January 14, 2005 explaining, among other things, that plaintiff was "earlier provided a copy of the Presidential Inaugural Committee's (PIC) Permit 04-0466 Amendment 1, which fully detailed PIC's permit areas and that it included not just the bleachers themselves but also the area in front of them." See Exh. R to the Owen Decl. ("January 14, 2005 NPS Letter") at 3 (pages not numbered). NPS stated that the reserved sidewalk area in front of the bleachers -- that is, between the bleachers and the parade itself -- "allows bleacher access, where ticketed handicapped guests may sit, and allows all ticket holders to be able to freely observe the parade." Id.

The January 14, 2005 NPS letter makes clear that the defendants did intend to exclude non-ticket-holders from the sidewalks in front of the bleachers within the PIC permit areas along Pennsylvania Avenue.*fn12 Only those who have an invitation issued by the PIC could get tickets to the event and therefore enter the PIC bleachers or occupy the Pennsylvania Avenue sidewalk space in front of them along the parade route. See Exh. 46 to Pl's Mot., Affidavit of Anne Wilson ¶¶ 5-6.

Defendants state that for the 2005 Inaugural Parade, there was: a total of approximately 8,414 lineal feet of sidewalks curb-to-curb from 4th Street to 15th Street. Of these sidewalks, the Presidential Inaugural Committee has approximately 3,882 feet for its bleachers, approximately 95 feet for announcer and media stands, and approximately 104 feet for the Armed Forces Inaugural Committee trailers. For the remaining 4,333 feet, there was approximately 3,878 feet available for the general public, of which approximately 1,252 feet was designated by the Park Service for the handicapped general public.

Owen Decl. ¶ 86.

Plaintiff asserts that "ANSWER was given the following spaces: John Marshall Park which afforded 210 feet abutting Pennsylvania Avenue, five tiny areas behind bleachers constructed by PIC, one area in Pershing Park behind a wall, and five feet of space abutting Pennsylvania Avenue in Freedom Plaza. In effect, the opposition assembly was placed in tiny pockets away from the front of the parade route and frequently behind massive bleachers of Bush supporters." PSMFD ¶ 22 (citing Sloan Affidavit, Exh. 1 at 4; Exh. 34; Exh. 35). Plaintiff also observes that the "area in Freedom Plaza was the only area other than John Marshall Park that was not behind bleachers and abutted the route. However, at five feet of linear space along Pennsylvania Avenue, it was too small for a large scale protest." PSMFD ¶ 23 (citing Sloan Affidavit at 5). By contrast, the plaintiff claims that the "breadth of Pennsylvania Avenue that abuts the parade route set aside exclusively for PIC was over 4,272 feet of the route. This was 22 times the access given to the public and protestors." PSMFD ¶ 25 (citing Sloan Affidavit at 5; Exhibit 48).*fn13

Defendants respond that "[t]he nine park areas for plaintiff's permits were sufficient to fully accommodate the requested numbers of participants for their demonstration activities and in many areas allowed the plaintiff's group to see and be seen from the parade route." DSMF ¶ 13; see also Owen Decl. ¶¶ 69-76 (describing in detail areas allowed to plaintiff under its permit).

Plaintiff filed this lawsuit on January 14, 2005, seeking an expedited preliminary injunction against the National Park Service and the United States Secret Service "to preclude denial of access to the 2005 Inaugural Parade Route." Complaint at 1. A hearing on the motion for preliminary injunction was held before the undersigned on January 18, 2005. At the conclusion of the hearing, the Court denied the motion for a preliminary injunction, explaining its reasoning in an oral opinion. See January 18, 2005 Order; Transcript of Excerpt of January 18, 2005 Preliminary Injunction Hearing ("PI Transcript"). Plaintiff did not appeal the Court's denial of the motion for a preliminary injunction.

ANSWER filed an amended complaint for declaratory and injunctive relief on July 28, 2005. The parties subsequently briefed the dispositive motions that are now before the Court. Plaintiff states that it "advance[s] this litigation to vindicate the rights of all to equal access to the public parade portion of the Inaugural ceremony," and makes clear that it does not "seek to disturb the existing and exclusive system of access to the inaugural ceremony on the U.S. Capitol grounds or to Lafayette Park[.]" Am. Compl. at 4. Rather, plaintiff seeks "injunctive relief prohibiting NPS from this repeated course of constitutional deprivation[.]" Id.

Count I of the amended complaint alleges "unconstitutional permitting violations" under the First Amendment and the Equal Protection Clause. See Am. Compl. ¶¶ 87-97. More specifically, plaintiff asserts that "it is constitutionally impermissible for NPS to exempt itself or the PIC from the constitutionally mandated permitting system, particularly where such deviation works an abridgement of others' free speech, petition and assembly rights." Id. ¶ 89. Plaintiff also asserts that the "NPS action, in excluding the public and anti-war demonstrators from vast sections of the Inaugural Parade route is not a reasonable time, place or manner regulation[,]" and that the "NPS actions and policies constitute viewpoint-based and content-based discrimination, favoring those approved by the administration's Inaugural Committee and disfavoring those who are not so approved, especially those who wish to express their opposition to the current administration's policies at this unique quadrennial political moment through mass assembly and visible protest." Id. ¶¶ 90-91.

Count II alleges that the prohibition on sign supports also violates the First Amendment and the Equal Protection Clause. See Am. Compl. ¶¶ 98-102. On November 13, 2007, the Court granted plaintiff's motion for discovery under Rule 56(f) of the Federal Rules of Civil Procedure, solely with respect to the claims relating to the prohibition of sign supports, and denied without prejudice defendants' motion for summary judgment with respect to those claims.

See November 13, 2007 Order. This Opinion will not address Count II of the amended complaint because there is no motion before it with respect to that claim.

Finally, Count III requests injunctive relief for the violation of plaintiff's First Amendment and equal protection rights, seeking "equal access for the public and dissenters to the parade route." Am. Compl. ¶ 108. In Count III, plaintiff requests that no one, including itself and the PIC, be given exclusive access to the parade route on Inauguration Day, but rather that everyone -- demonstrators and administration supports and tourists alike -- be able to mingle freely on the sidewalks of Pennsylvania Avenue.*fn14

Plaintiff requests the following relief, in relevant part, in its amended complaint:

a. Declaratory judgment that the NPS policy and practice of exempting itself and/or the PIC from strict compliance with the generally applicable permitting regulations is unconstitutional; and an ...


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