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Defending Animal Rights Today and Tomorrow v. Washington Sports and Entertainment

October 20, 2011

DEFENDING ANIMAL RIGHTS TODAY AND TOMORROW, PLAINTIFF,
v.
WASHINGTON SPORTS AND ENTERTAINMENT, LP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Every year, the Ringling Bros. and Barnum & Bailey Circus makes an appearance under the big top at the Verizon Center in the District of Columbia. Every year, it attracts a crowd of parents and children, cotton candy vendors, and animal rights activists. In 2011, the circus came to town on March 24. Compl. ¶ 8. And on that date, members of plaintiff organization Defending Animal Rights Today and Tomorrow ("DARTT") were on hand to provide information concerning the treatment of animals to circus patrons as they left the performance. Compl. ¶ 10.

DARTT members were permitted to utilize a variety of media to communicate their message: they were wearing signs, they displayed images on the side of the Verizon Center building with a video projector, they were equipped with megaphones to amplify their spoken comments, and they handed out leaflets. But DARTT brings this lawsuit alleging that defendants Washington Sports and Entertainment ("WSE") and the District of Columbia ("D.C." or "the District") violated its rights under the First Amendment to the U.S. Constitution because the protesters were directed to move their leafleting activity from their chosen location under the overhang directly outside the Verizon Center doors to other points on the F Street sidewalk. Since both the circus and the leafleting had come to an end before this action was filed, the Court denied plaintiff's motion for preliminary injunction on May 24, 2011. Defending Animal Rights Today and Tomorrow v. Wash. Sports and Entm't, LP, et al., No. 11-cv-00786, 2011 WL 2020788, at * 3 (D.D.C. May 24, 2011) [Dkt. #14]. Defendants have now moved to dismiss the complaint or, in the alternative, for summary judgment [Dkt. #17 and #19]. The parties each submitted declarations in support of their positions, and WSE provided the Court with unedited surveillance video from the dates and times at issue, which depicts the scene outside the Verizon Center when the circus concluded. Ex. A to Touhey Decl. The Court heard oral argument on defendants' motions on September 8, 2011. For the reasons stated below, the Court will grant defendants' motions, and this case will be dismissed. Since plaintiff's lawful protest activities were neither prohibited nor impeded, the First Amendment was alive and well on F Street in March of 2011.

BACKGROUND

The Verizon Center is a sports and entertainment arena located at 601 F Street, N.W., Washington, D.C. Since 2009, DARTT has held protests at the Verizon Center when the Ringling Bros. circus was in residence to inform attendees about "Ringling's cruel treatment of animals." Compl. ¶ 10; Ortberg ¶ Decl. 2--3. DARRT intends to stage similar protests at all future Ringling Bros. circuses held at the Verizon Center. Compl. ¶ 30; Ortberg Decl. ¶ 9.

This year, the circus was held from March 24 to March 27, 2011. Compl. ¶ 8. On March 24 and 25, 2011, DARTT members distributed its leaflets as circus-goers left the arena. Riley Decl. ¶¶ 2, 4; Alioto Decl. ¶ 8. Approximately 9,000 people attended the circus on each of those nights. Touhey Decl. ¶ 3. Because so many patrons leave the Verizon Center together immediately after the conclusion of an event, "the period just after an event ends is when crowd control is most challenging and pedestrian safety issues are most significant around the F Street exterior doors." Id. ¶ 10.

On at least one of the evenings, there were approximately seven protesters on hand to distribute fliers. Euler Decl. ¶ 3. In addition to leafleting, DARTT members also protested by shouting into a megaphone and by projecting words and images on the side of the Verizon Center. Alioto Decl. ¶ 8. Some were holding or wearing signs. Motions Hearing Transcript ("Tr.") at 37--38, September 8, 2011; Ex. A to Touhey Decl.

On the night of March 24, 2011, Jennifer Riley, a member of DARTT, states that she was handing out leaflets to patrons leaving the circus when a Verizon Center employee told her she could not stand near the door. Riley Decl. ¶ 2. Then, "[a]s more people started leaving the Verizon Center, a different Verizon Center employee told me that I needed to move out to the edge of the sidewalk." Id. Riley claims that from her new location, "I had trouble handing out leaflets . because the circus patrons were not walking near me . [and] would have to walk several feet to get the flier from me." Id. ¶ 3. Riley also asserts that "[a]t the times that I was closer to the door, more people were accepting fliers from me." Id. On the same night, another member of DARTT, Robin Euler, was leafleting under the concrete awning at the F Street entrance to the Verizon Center when two security guards told her to move beyond the awning. Euler Decl. ¶ 2. One of the security guards informed her that she needed to move because the area of the sidewalk under the awning was private property. Id.

On the next night, March 25, 2011, DARTT members returned to the Verizon Center for another protest. Euler was again leafleting at the F Street entrance approximately "4 feet from where the awning ends." Id. ¶ 3. An off-duty Metropolitan Police officer, Sgt. Anthony Alioto, told her that she "couldn't stand anywhere on the ground below the awning." Id. Euler complied with his order, but she asserts that because she was farther from the door, "[a]bout one-tenth as many people were taking fliers" as compared to when she was standing under the awning. Id. ¶ 4. Riley, who was also standing under the overhang distributing leaflets on March 25, was told by Sgt. Alioto that she "could not stand under the overhang" because it was "private property." Riley Decl. ¶ 4. When Riley questioned Sgt. Alioto about whether the strip of sidewalk between the edge of the overhang and sidewalk curb was private property, Sgt. Alioto responded that he did not know. Id. Riley moved from under the overhang but complains that she "had trouble handing out leaflets to many of the patrons." Id. ¶ 5. She claims that "[m]ore patrons were accepting my leaflets when I was standing under the overhang." Id.

By way of background, the Court notes that the following facts are undisputed: x The F Street doors to the arena are recessed 7 feet 2 inches back from the arena's main facade, and the recessed area is bounded by large concrete columns. Joint Supplemental Statement of Facts at ¶ 1; [Dkt. #35]. x The concrete awning that overhangs both the recessed entrance on F Street and the adjacent sidewalk extends over the sidewalk approximately 23 feet 3 inches from the arena doors. Id. x The edge of the overhang does not correspond to the edge of the sidewalk; there is 9 feet 8 inches of sidewalk remaining between the edge of the 23 foot overhang and the curb directly in front of the doors. Id. x And on the nights in question, even the curb did not mark the edge of pedestrian territory. The parties agree that the patrons exiting the arena were not confined to the sidewalk, and traffic in the street was blocked, as the pedestrians spilled out onto F Street. Tr. at 26--27. So, the five lane street extended the sidewalk well past the 9.5 feet it already extended beyond the overhang. Id.

If one turns to the right after exiting the arena on F Street, the sidewalk leads directly to the entrance of the Gallery Place Metro station at the corner of 7th and F Streets, N.W. See Ex. 2 to Light Decl. Therefore, as is visible from the videotape submitted as evidence, a large percentage of the arena patrons headed in that direction. Ex. A to Touhey Decl.

STANDARD OF REVIEW

Although defendants move to dismiss or, in the alternative, for summary judgment, summary judgment is the appropriate vehicle here because the Court and the parties rely on matters outside the pleadings.*fn1 Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.

ANALYSIS

I. ...


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