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Leslie Weise et al v. Gregory J. Jenkins Et

July 13, 2011

LESLIE WEISE ET AL., PLAINTIFFS,
v.
GREGORY J. JENKINS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This action arises out of an incident on March 21, 2005, when Plaintiffs Leslie Weise and Alex Young were excluded from a public event in Denver, Colorado, where then-President George W. Bush was scheduled to give a speech on the topic of Social Security. According to Plaintiffs, officials acting under the authority of the White House Office of Presidential Advance ejected Plaintiffs from the event solely because they had arrived in a car that bore a bumper sticker carrying the slogan "No More Blood For Oil." Plaintiffs filed this action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking to remedy this alleged violation of their First Amendment rights. Defendants Gregory Jenkins and Todd Beyer are not the officials in Denver who actually ejected Plaintiffs from the event; rather, they are two former directors of the White House Office of Presidential Advance who are alleged to have created the policies that allegedly led to Plaintiffs' ejection. Plaintiffs therefore seek to hold Defendants liable for creating an unconstitutional policy.

Presently pending before the Court are Defendant Jenkins's [34] Motion to Dismiss or in the Alternative for Summary Judgment and Defendant Beyer's [33] Motion for Summary Judgment, which the Court shall treat as a motion to dismiss.*fn1 Defendants contend that they are entitled to qualified immunity because they were not personally involved in the decision to remove Plaintiffs from the event and because the ejection did not violate Plaintiffs' clearly established constitutional rights. Plaintiffs argue that the policy was clearly unconstitutional and that they are entitled to discovery regarding Defendants' involvement in creating it. The Court declines to address Defendants' claims of qualified immunity, however, because the Court finds that the allegations in the Amended Complaint, considered together with the language of the challenged policy, fail to state a claim for relief that is plausible on its face. Accordingly, the Court shall grant Defendants' motions and dismiss Plaintiffs' Amended Complaint. The Court does not address the constitutionality of Defendants' actions or the actions of those who removed Plaintiffs from the event.

I. BACKGROUND

A. Factual Background

The following facts are drawn from the allegations in the Amended Complaint, which the Court accepts as true for purposes of evaluating a motion to dismiss, see Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).

1. Weise and Young's Attendance at and Removal from a Presidential Event On March 21, 2005, then-President George W. Bush held an event at the Wings Over the Rockies Air and Space Museum in Denver, Colorado, where he delivered a speech on the topic of Social Security. Am. Compl. ¶ 8. This speech was an official visit by the President, paid for by taxpayers and open to the public. Id. ¶ 9. On March 18, 2005,Plaintiffs Leslie Weise ("Weise") and Alex Young ("Young") separately obtained tickets to the event from the office of United States Representative Bob Beauprez. Id. ¶ 10.

Plaintiffs arrived at the event on March 21 in a vehicle owned and driven by Weise. Am. Compl. ¶ 11. Weise's vehicle displayed a bumper sticker with the slogan "No More Blood for Oil," which it is claimed could have been interpreted as an expression of opposition to the President's policies. Id. Plaintiffs allege that their purpose in attending the event was to listen to the President's views on Social Security and that they had no intention of disrupting the event. Id. ¶ 12. In addition, Young alleges that if the President had permitted questions from the floor, he would have sought to ask a question. Id. Neither Defendant has made any assertion that Plaintiffs intended to disrupt the event in any fashion, and Plaintiffs claim (without dispute from Defendants) that they did not engage in any action that could be considered disruptive. Id. ¶ 29.

Weise, accompanied by a friend, approached the metal detectors near the entrance to the event and was asked to show identification. Am. Compl. ¶ 13. Weise showed her identification, but the man guarding the entrance prohibited Weise and her friend from entering the event and directed them to stand aside next to a member of the White House Event Staff. Id. Young was screened by a different person and was permitted to pass through security; he then went inside and found a seat. Id. ¶ 14. Michael Casper ("Casper"), a member of the White House EventStaff, told Weise that she had been "ID'd" and that she and her friend would be arrested if they had any ill intentions or if they tried any "funny stuff." Id. ¶ 16. Plaintiffs allege that Casper issued these threats and warnings solely because of the bumper sticker on Weise's car and his perception that Weise opposed the President's policies. Id. ¶ 17.

After Casper issued these warnings, he let Weise and her friend enter the event, and they proceeded to the area where the audience was seated. Id. ¶ 18. However, Casper then consulted with two full-time employees of the White House Office of Presidential Advance (one of whom was the Deputy Director of that office), and these employees told Casper to require Weise and Young to leave the event. Id. A few minutes later, Casper found both Young and Weise inside the event and told them to leave. Id. ¶ 19. Casper placed his hand on Young's back and shoved him forward toward the exit, and Weise followed Casper as he pushed Young toward the door. Id. Young repeatedly asked Casper who he was, where he was taking them, and what was going on. Id. Casper told them that it was a private event and that they needed to leave. Id.

Once outside the event, Weise and Young were left with a group of men. Am. Compl. ¶ 20. One of the men identified himself as a member of the Secret Service, and he told Weise and Young that if staff asked them to leave, they had to leave. Id. After the event, the Secret Service confirmed to Weise and Young that they were ejected from the event because of the bumper sticker on Weise's vehicle. Id. ¶ 21. Plaintiffs claim that the audience at the event included many individuals who were wearing political paraphernalia expressing support for the President and his policies, and none of them were asked to leave the event. Id. ¶ 22. Plaintiffs contend that their removal from the event deprived them of their First Amendment rights and caused them to suffer emotional distress. Id. ¶ 23.

2. The White House Office of Presidential Advance Policies Regarding Attendance at Presidential Events

Planning for each official Presidential visit begins in the District of Columbia with the White House Office of Presidential Advance ("Advance Office"). Am. Compl. ¶ 24. Defendant Jenkins was the Director of the Advance Office from January 15, 2003 to November 30, 2004. Id. ¶ 7. Defendant Beyer later served in the same position and was Director of the Advance Office at the time of the March 2005 incident.*fn2 Id. ¶ 6. Plaintiffs claim that the "policies concerning attendance at the event were set by Defendants acting as federal officials" and that "the ejection of the Plaintiffs was done at the direction of and pursuant to the policies adopted and implemented by the Defendants." Id. ¶ 25. Plaintiffs allege that these policies are embodied in the Presidential Advance Manual created by the Advance Office. Id. ¶¶ 26-27. Plaintiffs allege that Defendants Jenkins and Beyer were responsible for promulgating and implementing these policies while serving in their capacities as Directors of the Advance Office. Id. ¶ 27.

The Presidential Advance Manual sets forth guidelines and policies to be followed by Advance Office staff and others who are responsible for managing Presidential events. See Pl.'s Opp'n, Ex. 2 (Excerpts from Presidential Advance Manual, October 2002) (hereinafter, "Advance Manual").*fn3 The policies relevant to this case are described in Section V of the Advance Manual, titled "Crowd Raising and Ticket Distribution." Id. at 32.*fn4 The Manual states that "[p]roper ticket distribution is vital to creating a well-balanced crowd and deterring potential protestors from attending events." Id. at 32. The Manual then sets forth policies regarding how ticket distribution will be coordinated by the Advance Office. Id. at 32-33.

The Manual also has a subsection specifically addressing the issue of demonstrators. Under a heading captioned, "Preventing Demonstrators," the Advance Manual states in pertinent part:

As mentioned, all Presidential events must be ticketed or accessed by a name list. This is the best method for preventing demonstrators. People who are obviously going to try to disrupt the event can be denied entrance at least to the VIP area between the stage and the main camera platform. That does not mean that supporters without tickets cannot be given tickets at the door and gain entrance to the event. It is also not the responsibility of the Secret Service to check the tickets of the people entering. They are concerned whether the person is a threat physically to The President and not a heckler. It is important to have your volunteers at a checkpoint before the Magnetometers in order to stop a ...


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