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Oberwetter v. Hilliard

January 25, 2010

MARY BROOKE OBERWETTER, PLAINTIFF,
v.
KENNETH HILLIARD AND KENNETH L. SALAZAR, DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

On April 12, 2008 -- the eve of Thomas Jefferson's birthday -- Mary Brooke Oberwetter and seventeen of her friends gathered at the Jefferson Memorial to honor the former president, intending to do so through "expressive dance." Oberwetter, however, was stymied when shortly after beginning her celebration, Officer Kenneth Hilliard of the United States Park Police ordered her to stop dancing and leave the Jefferson Memorial. She refused, and asked Officer Hilliard the reason for his command. He did not answer, and instead arrested Oberwetter for demonstrating without a permit and interfering with an agency function.

Based on these events, Oberwetter brings this action against Officer Hilliard and Kenneth Salazar, in his official capacity as Secretary of the Department of the Interior. She seeks declaratory and injunctive relief on the theory that her expressive dancing is protected by the First Amendment, and therefore Officer Hilliard's suppression of that activity is unconstitutional. Oberwetter also seeks monetary damages from Officer Hilliard based on alleged violations of her First and Fourth Amendment rights. Before the Court is [6] defendants' motion to dismiss, on which the Court heard oral argument on December 11, 2009. Upon consideration of the applicable law, the parties' several memoranda and the entire record herein, and for the reasons stated below, the Court grants defendants' motion.

I. Background

A.

The National Park Service is tasked with regulating the Nation's parks and monuments, which include the parks and monuments of the National Capital Region. See 16 U.S.C. § 1; ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 951 (D.C. Cir. 1995). The Park Service's National Capital Region comprises, in part, "the National Mall, the Washington Monument grounds, and the Lincoln, Jefferson, and Vietnam Veterans Memorials." ISKCON, 61 F.3d at 951. "The Park Service has been directed to protect the 'fundamental purposes' of the Mall and of the other parks and monuments within the National Capital Region." Id. at 952. To fulfill this duty, it has promulgated regulations governing the use of these parks and monuments. See id.; see also 36 C.F.R. § 7.96 (regulation governing parks and monuments in the National Capital Region).

Of particular relevance here, the regulations generally prohibit demonstrations and special events in the parks and monuments of the National Capital Region, unless they are held "pursuant to a permit issued in accordance with the provisions of [36 C.F.R. § 7.96(g)(2)]." 36 C.F.R. § 7.96(g)(2). Where a demonstration or special event involves fewer than twenty-six individuals, however, it may occur "without a permit provided that the other conditions required for the issuance of a permit are met." Id. at § 7.96(g)(2)(i). These general provisions, however, do not apply to all of the monuments in the National Capital Region. Indeed, the Park Service may not issue permits for demonstrations and special events at the Washington Monument, the Lincoln Memorial, the Jefferson Memorial, and the Vietnam Veterans Memorial. See id. § 7.96(g)(3)(ii)(A)-(D). The Park Service's stated goal in prohibiting demonstrations at these four monuments is "protecting legitimate security and park value interests, including the maintenance of an atmosphere of calm, tranquility, and reverence in the vicinity of [these] memorials." 41 Fed. Reg. 12879, 12880 (Mar. 29, 1976). Despite this broad prohibition on demonstrations at these four monuments, the Park Service does permit certain "official" commemorative events at these locations, including "the official annual commemorative Jefferson birthday ceremony." 36 C.F.R. § 7.96(g)(3)(ii)(C).

The regulations also prohibit individuals from interfering with the Park Service's protection of the nation's parks and monuments. An individual may not "threat[en], resist[], intimidat[e], or intentionally interfer[e] with a government employee or agent engaged in an official duty, or on account of the performance of an official duty." Id. § 2.32(a)(1). Nor may an individual [v]iolat[e] the lawful order of a government employee or agent authorized to maintain order and control public access and movement during fire fighting operations, search and rescue operations, wildlife management operations involving animals that pose a threat to public safety, law enforcement actions, and emergency operations that involve a threat to public safety or park resources, or other activities where the control of public movement and activities is necessary to maintain order and public safety.

Id. § 2.32(a)(2). With exceptions not relevant here, "[a] person convicted of violating a provision of the [National Park Service's] regulations . . . shall be punished by a fine as provided by law, or by imprisonment not exceeding 6 months, or both . . . ." Id. § 1.3(a).

B.

The Jefferson Memorial is located on the south bank of the Tidal Basin in West Potomac Park in Washington, D.C.*fn1 This site was chosen for its aesthetic and architectural significance: "The importance of Jefferson as one of the great figures in the Nation's history demanded a memorial site of prominence in the central plan of the Capital City and in relation to the other great memorials already built." Defs.' Mem. in Supp. of their Mot. to Dismiss ("Defs.' Mem.") [Docket Entry 6], Declaration of Stephen Lorenzetti, Attachment 2 (National Park Service Brochure Describing the Thomas Jefferson Memorial), 1. The Memorial is a circular, open-air structure topped by a domed roof. It is surrounded on all sides by a series of Ionic columns, and its interior is again ringed with a series of Ionic columns. To enter the Memorial, visitors must climb forty steps, rising from ground level to a portico. These steps are accessible only by means of a public path that runs along the Tidal Basin, and a public path that runs through West Potomac Park. After ascending the steps, visitors must travel through the portico to enter the Memorial's interior chamber. This portico provides the only method of accessing the Memorial's interior chamber. When entering the chamber, visitors pass a sign requesting "Quiet Respect Please."

C.

Mary Brooke Oberwetter and seventeen of her friends gathered in the interior of the Jefferson Memorial on the eve of Jefferson's birthday to "celebrate and honor Thomas Jefferson, his ideals, and his political legacy, on the occasion of his birth." Compl. ¶ 12. They did so with expressive dance -- "the dancers danced for the most part by themselves, in place, each listening to his or her music on headphones" because such activity expressed "the individualist spirit for which Jefferson is known." Compl. ¶ 13.

Oberwetter and her friends began dancing "at approximately five minutes to midnight, April 13, 2008 [sic]." Compl. ¶ 13. Shortly thereafter, Oberwetter alleges Officer Hilliard of the United States Park Police "approached Plaintiff while she was silently dancing in place, listening to music through earbud[] [headphones]. Defendant Hilliard pushed Plaintiff, and then left. Moments later, Defendant Hilliard returned to Plaintiff, who was still quietly dancing, and ordered her to leave." Compl. ¶ 17. She offers that she "removed an earbud so that she could speak with Defendant Hilliard," asking why Officer Hilliard "was ordering her to leave, and what law she was violating." Compl. ¶ 18. According to Oberwetter, however, "Defendant Hilliard refused to answer, insisting only that Plaintiff stop dancing and leave the Jefferson Memorial." Compl. ¶ 18.

Oberwetter "agreed to stop dancing and leave the Jefferson Memorial if Defendant Hilliard would only provide a lawful reason why she needed to do so." Compl. ¶ 19. She alleges that Hilliard would not do so, "and instead arrested Plaintiff." Compl. ¶ 19. Although Oberwetter contends that "at all times [she was] peaceful and did not resist Defendant Hilliard or any other officer in any way," Compl. ¶ 20, she states that Hilliard "used more force than was necessary to effect his arrest of Plaintiff, ripping apart her earbud, shoving her against a pillar, and violently twisting her arm." Compl. ¶ 21.

After Oberwetter's arrest, a Park Police officer advised her that she would be charged with "disturbing the peace," and issued her a citation for "Interfering with an Agency Function" in violation of 36 C.F.R. § 2.32(a)(1)-(2). Compl. ¶ 22. She "was held for approximately five hours before being released." Compl. ¶ 23. "Several days" later, "Park Police officers arrived at Plaintiff's house and gave her two citations issued by Defendant Hilliard: an apparently superceding citation for 'Interfering with an Agency Function,' . . . and an additional citation for 'Demonstrating Without a Permit,' in violation of 36 C.F.R. § 7.96(g)(3)(ii)(C)." Compl. ¶ 24. At her court appearance, the court found "that the prosecution was not properly before the Court and advised Defendant Hilliard that if he wished to proceed, he would have to properly prepare the matter for hearing." Compl. ¶ 25. The Park Service has taken no further action on this matter. Compl. ¶ 25.

Based on these allegations, Oberwetter seeks a declaratory judgment that "expressive activity and assembly of the kind suppressed by Defendant Hilliard on the evening of April 12-13, 2008, is protected by the First Amendment . . . ; and that 36 C.F.R. §§ 2.32(a)(1)-(2) & 7.96 are unconstitutional as applied to prohibit such activity." Compl. ¶ 36. She also seeks an order enjoining the government from enforcing the challenged regulations so as to prohibit expressive dancing within the Memorial. In support of her request for equitable relief, she states that she "would again silently dance at the Jefferson Memorial . . . but refrains from doing so because she reasonably fears arrest, prosecution, fine, and/or incarceration if she were to do so again." Compl. ¶ 26. Oberwetter also pursues three Bivens claims against Officer Hilliard for (1) limiting Oberwetter's right of free speech and assembly in violation of the First Amendment; (2) arrest without probable cause in violation of the Fourth Amendment; and (3) excessive force in violation of the Fourth Amendment. Compl. ¶¶ 28-34.

II. Standard

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable ...


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