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Mahoney v. District of Columbia

September 30, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs Reverend Patrick Mahoney, Kaitlin Mahoney Martinez, the Christian Defense Coalition, Survivors of the Abortion Holocaust, and Cheryl Conrad bring this action against defendants District of Columbia ("District"), Chief of the Metropolitan Police Department ("MPD") Cathy L. Lanier, and unidentified MPD officer "John Doe."*fn1 Plaintiffs allege that defendants' refusal to permit them to engage in "chalk art" demonstrations on the pavement of the 1600 block of Pennsylvania Avenue in front of the White House violated the First, Fourth, and Fifth Amendments to the U.S. Constitution; the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.; and the District of Columbia First Amendment Rights and Police Standards Act of 2004 ("FARPSA"), D.C. Law 15-352 (2005) (codified at D.C. Code § 5-331.01, et seq.).Before the Court is defendants' motion to dismiss the complaint or, in the alternative, for summary judgment and plaintiff's opposition thereto. For the reasons set forth below, defendants' motion will be granted.


In late 2008, plaintiffs began preparations for a January 24, 2009 demonstration on the paved pedestrian promenade segment of the 1600 block of Pennsylvania Avenue, N.W., directly between the White House and Lafayette Park ("the 1600 Block promenade"), to protest President Obama's position on abortion and to protest the anniversary of the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973). (See Am. Verified Compl. ("Compl.") ¶¶ 51-55, 57-60 [Dkt. 14]; Pls.' Mot. for TRO and Prelim. Inj. ("TRO Mot.") [Dkt. 4], Decl. of Rev. Patrick Mahoney ("Mahoney Decl."), Attach. 1 ("1st Henderson Letter") at 1; Defs.' Mot. to Dismiss the Complaint or, in the Alternative, for Summ. J. ("Mot.") [Dkt. 17], Statement of Material Facts ("Defs.' SMF") ¶ 1.) This particular portion of Pennsylvania Avenue is under the jurisdiction of the District of Columbia, while the National Park Service ("NPS") has jurisdiction over the adjacent White House sidewalk and Lafayette Park. (NPS Opp'n to TRO Mot. ("NPS TRO Opp'n") [Dkt. 9] at 1.) In addition, NPS is responsible, pursuant to an agreement with the District, for maintaining and repairing the 1600 Block promenade. (Id.; see also id., Decl. of Ann Bowman Smith ("Smith Decl.") ¶ 5 & Ex. B.)


In the District, expressive assemblies are regulated by the "First Amendment Assemblies" subchapter of FARPSA and related regulations. See generally D.C. Code §§ 5-331.01 to -331.17; D.C. Mun. Regs. tit. 24, §§ 705-706, 711-712. Section 5-331.03 of the D.C. Code declares that it is the District's policy to permit "First Amendment assemblies" -- i.e., those conducted for social, political, and religious expression -- "on the streets, sidewalks, and other public ways," subject to "reasonable restrictions designed to protect . . . property . . . ." D.C. Code § 5-331.03; see also id. § 5-331.02(1) (defining "First Amendment assembly"). Except in three exempted situations, assembly organizers must give notice to the MPD and seek advance approval for their event so that the District can coordinate the use of public spaces by multiple groups and facilitate the allocation of police protection and other municipal assistance to assembly participants. Id. § 5-331.05(b)-(d). However, it is not an offense to assemble without having received advance approval. Id. § 5-331.05(a).

FARPSA requires the MPD to "recognize and implement" the policy announced in § 5-331.03 "when enforcing any restrictions" on assemblies. Id. § 5-331.04(a). The MPD may impose content-neutral "reasonable time, place, and manner restrictions" on expressive assemblies in three ways: prior to an assembly through the approval of an assembly plan; during an assembly for which no plan was approved; or during an assembly whose plan had previously been approved subject to restrictions, provided that the additional restrictions satisfy one of three specified criteria. Id. § 5-331.04(b) & (c).

Although the authority to grant an assembly plan is vested exclusively with the Chief of Police or her designee, id. § 5-331.06(a)(1), the municipal regulations specify that assembly plans shall be approved if nine enumerated conditions are satisfied. D.C. Mun. Regs., tit. 24, § 706.9 ("Regulation 706.9"). In addition, the exercise of assembly plan review and approval authority is subject to timing and notice requirements. See D.C. Code. § 5-331.06(b) & (c). For example, the Chief must provide a written rationale for any limitations on the approval of an assembly plan which the applicant had previously indicated would be "objectionable." Id. § 5-331.06(c)(3). An applicant may appeal restrictions and denials of approval to the Mayor or his designee, who must "expeditiously" issue a written ruling on the appeal before the assembly's planned date and time. Id. § 5-331.06(d).


On November 24, 2008, plaintiffs notified the MPD and the Department of the Interior ("DOI") by letter of their intent to protest the Roe decision on January 24, 2009, on the 1600 Block promenade. (See 1st Henderson Letter at 1; Compl. ¶¶ 83, 92, 94; Defs.' SMF ¶ 1.) The letter explained that plaintiffs planned "to create a variety of verbal and visual messages, by making chalk drawings on the paved surface of Pennsylvania Avenue."*fn2 (1st Henderson Letter at 2.) Plaintiffs' letter was received by Commander James Crane of the MPD Special Operations Division ("SOD"), whose duties and responsibilities include the issuance or denial of assembly plan approvals pursuant to FARPSA (Defs.' SMF ¶ 3), and by officials at the DOI, who communicated the information to the NPS.*fn3 (See Smith Decl. ¶ 6.)

On January 7, 2009, Commander Crane responded to plaintiff's November 24 letter. (See TRO Mot., Mahoney Decl., Attach. 4 ("Crane Letter"); see also Compl. ¶¶ 97-98.) Crane's letter articulated the MPD's security concerns regarding the White House and requested additional information that would help the MPD fashion a permit, such as the number of anticipated participants, the starting and ending times of the demonstration, and whether plaintiffs contemplated using any sound amplification or other equipment.*fn4 (Crane Letter at 1-2.) The letter was accompanied by a form entitled "Assembly Plan Notification/Application for Approval of Assembly Plan." (Id. at 2, 3 (attachment).) It also informed plaintiffs that chalking the 1600 Block promenade and adjacent sidewalks would constitute defacement of public property in violation of the District's criminal defacement statute, D.C. Code § 22-3312.01, as well as NPS regulations, and that the MPD did not intend "to issue a demonstration permit that could be understood to exempt organizers or any other persons from the neutral application" of the District's defacement statute. (Id. at 2.)

On January 8, 2009, Margaret O'Dell, on behalf of the NPS, sent a letter to plaintiffs that explained the agency's jurisdiction over the White House sidewalk and its maintenance responsibilities for the portion of Pennsylvania Avenue adjacent to the sidewalk. (NPS TRO Opp'n., Ex. 1 ("O'Dell Letter").) O'Dell expressed the agency's view that chalking the grounds directly in front of the White House would violate District law, as well as NPS regulations prohibiting the defacement of "cultural . . . resources," 36 C.F.R. § 2.1(a)(6), and of "real property" on park lands under federal legislative jurisdiction. Id. § 2.31(a)(3) & (b). (See O'Dell Letter at 2.) O'Dell's letter also asserted that the prohibition on chalking was a reasonable time, place, and manner regulation consistent with the First Amendment. (Id. at 1-2.)

On January 9, 2009, plaintiffs responded to the MPD by letter, citing the District's past sponsorship of chalk art events on public streets in other locations and characterizing as "patently ridiculous" the refusal to permit chalking on the 1600 Block promenade. (TRO Mot., Mahoney Decl., Attach. 5 ("3rd Henderson Letter") at 4; Am. Comp. ¶ 106.) Plaintiffs' letter demanded that permission be granted for them to express their views "through the medium of sidewalk chalk" or else they would initiate litigation to compel such permission. (3rd Henderson Letter at 4.)

On January 12, 2009, Commander Crane transmitted to plaintiffs an "Assembly Plan Approval" that permitted the use of signs and banners but expressly withheld permission for sidewalk chalking:

In accordance with the provisions of the First Amendment Assemblies Act of 2004, permission is hereby granted to Rev. Patrick Mahoney to conduct a First Amendment Assembly on Saturday, January 24, 2009 from 0700 hours (assembly time), [to] 1900 hours (disbanding time), consisting of no more than 5,000 persons. You are permitted to possess signs and banners. However, there is no permission granted to use chalk or any other material to mark the surfaces of Pennsylvania Ave., N.W. (TRO Mot., Mahoney Decl., Attach. 6 ("Assembly Plan Approval") at 2 (emphasis added).) The Assembly Plan Approval also indicated that plaintiffs would need a U.S. Park Police permit in order to make any use of the White House sidewalk or Lafayette Park. (Id.)


On January 16, 2009, plaintiffs initiated this action and moved for a temporary restraining order ("TRO") and preliminary injunction, seeking to stop the District and the MPD from denying them permission to engage in "chalk art" as part of their approval to demonstrate on January 24. On the evening of January 20, the day of the presidential inauguration, defendants and the NPS, as amicus curiae, filed oppositions to plaintiffs' motion. [Dkt. 8-9.] After hearing argument on January 22, the Court denied injunctive relief on the grounds that plaintiffs failed to establish a substantial likelihood of success on the merits. (See Jan. 22, 2009 Minute Order.)

On January 24, 2009, Mahoney and others went to the 1600 block of Pennsylvania Avenue, N.W. with the intent to conduct their planned demonstration. (See Compl. ¶¶ 125-127.) Commander Crane and other MPD officers were also present. (Id. ¶ 128.) Mahoney began to chalk the pavement, but MPD directed him to cease doing so, took the chalk away from him, and required him to identify himself. (Id. ¶¶ 132-134; Defs.' SMF ¶ 8; see also Defs.' Mot., Ex. A (video recording of incident).) Mahoney was not taken into custody or charged with any offense.

On February 25, 2009, plaintiffs filed an amended verified complaint asserting six causes of action. Plaintiffs' first cause of action ("Count I") contends that the District's defacement statute, on its face, violates the First Amendment's Speech Clause. (Compl. ¶¶ 157-164.) Plaintiffs' second, third, fourth, and fifth causes of action assert that by threatening to apply the defacement statute to plaintiffs' activities, defendants violated plaintiffs' rights under the First Amendment's Speech and Free Exercise Clauses ("Count II"), RFRA ("Count III"), FARPSA ("Count IV"), and the equal protection component of the Fifth Amendment's Due Process Clause ("Count V"). (Id. ¶¶ 165-186.) Plaintiffs' final cause of action alleges that the MPD's efforts to prevent Mahoney from chalking in front of the White House on January 24, 2009, violated his rights under the First, Fourth, and Fifth Amendments as well as RFRA ("Count VI"). (Id. ¶¶ 187-198.)

On March 17, defendants filed a motion to dismiss or, in the alternative, for summary judgment. [Dkt. 17-19.] On April 16, plaintiffs filed their opposition [Dkt. 20], and defendants filed their reply on May 5 [Dkt. 23]. On April 27, an annual "Chalk-In" event took place on H Street, N.W., between 21st and 22nd Streets, in which participants chalked the streets and sidewalks. (Pls.' Mot. to Supplement Opp'n to Mot. ("Pl.'s Mot. to Supplement") [Dkt. 24-25] at 2-3.) On May 6, 2009, plaintiffs sought to supplement their opposition in response to the Chalk-In event, and the Court granted the motion in light of defendants' consent.



The central dispute in this action is whether the government may prevent plaintiffs from chalking the 1600 Block promenade consistent with the Constitution. However, several threshold issues are not disputed. First, the parties agree that defendants were acting under the color of state law when they prevented plaintiffs from chalking. Second, the creation of words or images through chalk or any other medium is an act of expression that implicates the First Amendment. Third, the paved street of the 1600 Block promenade is public property that constitutes a "quintessential public forum[]" where "the government may not prohibit all communicative activity," because "streets and parks . . . 'have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939) (Roberts, J., concurring)). Fourth, the government may "regulate competing uses of public forums" by "impos[ing] a permit requirement on those wishing to hold a march, parade, or rally." Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (considering facial challenge to county ordinance requiring permits for assemblies and parade).

"None of this leads, however, to the conclusion that [plaintiffs] had a constitutional right to be free of all restraints." Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 372 (D.C. Cir. 1992). "'The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all,'" White House Vigil for the ERA Comm. v. Clark, 746 F.2d 1518, 1526 n.66 (D.C. Cir. 1984) (quoting Hague, 307 U.S. at 515 (Roberts, J., concurring)), and "[t]he government is not precluded . . . from regulating expressive activities conducted on the White House sidewalk," id. at 1527 (emphasis omitted), the public promenade directly in front of it, or any other public property. Although plaintiffs "may have First Amendment freedom to use [the 1600 Block promenade] for protected speech," this right "is not accompanied by an unlimited license" to speak in that traditional public forum through whatever medium and manner they see fit, "any more than the right to address an audience from the platform of a public monument would confer upon a speaker the freedom to paint a message on it, or to readorn with graffiti property owned by the government . . . ." People for the Ethical Treatment of Animals v. Giuliani ("PETA"), 105 F. Supp. 2d 294, 318 (S.D.N.Y. 2000); cf. United States v. Murtari, No. 07-CR-387, 2007 WL 3046746, at *5 (N.D.N.Y. Oct. 16, 2007) (noting that even though property damage statute under which defendant was charged did not prohibit defacement, he was not "free to write in chalk all over the federal plaza"). Moreover, neither the First Amendment nor FARPSA grants plaintiffs an unlimited right to tangibly alter the appearance of public property using chalk or any other medium, permanent or otherwise, nor does it require that this particular street be available to serve as a writing tablet. See Christian Knights, 972 F.2d at 372 ("When it comes to use of a public forum such as a street, . . . speakers do not have a constitutional right to convey their message whenever, wherever and however they please.").

With these guiding principles in mind, the Court will now turn to plaintiffs' facial and as-applied challenges under the First Amendment and FARPSA.

A. Count I: Facial Challenge

Count I attacks the defacement statute, D.C. Code § 22-3312.01, as unconstitutional on its face. Facial challenges are generally disfavored because they require courts to "'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,'" and because they "threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." See Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184, 1191 (2008) (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). Because the doctrines governing facial challenges are complex, the Court notes the instructive discussion offered by the Supreme Court in New York State Club Association, Inc. v. City of New York:

Although . . . facial challenges are sometimes permissible and often have been entertained, especially when speech protected by the First Amendment is at stake, to prevail on a facial attack the plaintiff must demonstrate that the challenged law either "could never be applied in a valid manner" or that even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it "may inhibit the constitutionally protected speech of third parties." City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Properly understood, the latter kind of facial challenge is an exception to ordinary standing requirements, and is justified only by the recognition that free expression may be inhibited almost as easily by the potential or threatened use of power as by the actual exercise of that power. Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). Both exceptions, however, are narrow ones: the first kind of facial challenge will not succeed unless the court finds that "every application of the statute created an impermissible risk of suppression of ideas," Taxpayers for Vincent, [466 U.S. at 798 n.15], and the second kind of facial challenge will not succeed unless the statute is "substantially" overbroad, which requires the court to find "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." [Id. at 801.]

487 U.S. 1, 11 (1988) (citations omitted); accord Initiative and Referendum Institute v. U.S. Postal Serv., 417 F.3d 1299, 1312 (D.C. Cir. 2005); Wash. State Grange, 128 S.Ct. at 1190 & n.6.

Regardless of how plaintiffs attempt to cast their arguments, their facial attack on the statute fails in light of the defacement statute's ...

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