Judges Memorandum 4/12/95

III. DEFENDANTS STEPHEN O'NEILL AND ANDREW KENESS ARE

ENTITLED TO OUALIFIED IMMUNITY FROM DAMAGES REGARDING

FOUR OF THE FIVE FACTUAL CLAIMS ALLEGED BY THE

PLAINTIFFS.

The Plaintiffs allege that Defendants O' Neill and Keness committed constitutional torts against the Plaintiffs by chilling the Plaintiffs' exercise of their First Amendment rights through harassment and intimidation. The Plaintiffs cite five instances of this allegedly unconstitutional behavior. First, the Plaintiffs allege that Officer O'Neill falsely arrested Plaintiff William Thomas for disorderly conduct. Second, the Plaintiffs argue that Officers O'Neill and Keness threatened to arrest Plaintiff William Thomas unless he removed a sign erected in the Park. Third, the Plaintiffs argue that Officers O'Neill and Keness pressured Plaintiffs William Thomas and Concepcion Picciotto to remove two flags from the Park, even though the Plaintiffs were allegedly exempt from the regulations which banned such flags and even though the Plaintiffs possessed valid permits for the flags. Fourth, the Plaintiffs claim that Officers O'Neill and Keness threatened to charge Plaintiff Concepcion Picciotto with a CFR violation unless she removed a plastic cooler from the Park. Finally, the Plaintiffs allege that Officers O'Neill and Keness kicked the Plaintiffs, prodded them with nightsticks, and banged on signs because the Plaintiffs allegedly camped in the Park unlawfully.

The threshold question in such cases is whether the Defendants are entitled to qualified immunity from suit for damages in light of their status as government officials exercising discretionary

functions. Kartseva v. Department of State, 37 F.3d 1524, 1530 (D.C. Cir. 1994); Hunter v. District of Columbia, 943 F.2d 69, 74 (D.C. Cir. 1991). In Harlow v. Fitzserald, 457 U.S. 800 (1982), the Supreme Court held that such officials may be entitled to qualified immunity from civil suit damages for the purpose of shielding them from "undue interference with their duties and from potentially disabling threats of liability. " Id. at 806. An official is entitled to qualified immunity if his or her conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. " Zd. at 818. Thus, breaking down Harlow's qualified immunity test into its components, the Plaintiffs must show that: (1) a clearly established right is at issue; and (2) the Defendants' actions in relation to that right were unreasonable. See Anderson v. Creishton, 483 U.S. 635, 645 (1987); Davis v. Scherer, 468 U.S. 183, 190 (1984) ("Even defendants who violate constitutional rights enjoy a qualified immunity . . . unless it is further demonstrated that their conduct was unreasonable ..").

A. Officer O'Neill is entitled to qualified immunity

regarding his arrest of Plaintiff William Thomas

or disorderly conduct.

The Plaintiffs' first claim is that Officer O'Neill falsely arrested Plaintiff William Thomas for disorderly conduct, thereby impairing the Plaintiff's exercise of his First Amendment rights. Specifically, the Plaintiffs point to an incident in which officer

O'Neill allegedly asked the Plaintiff whether Concepcion Picciotto's bicycle in the Park was registered. Declaration of William Thomas at n 6. The Plaintiff told the Officer to "climb a flagpole," at which point the Officer allegedly arrested the Plaintiff for disorderly conduct. Id.

After reviewing the Plaintiffs' Complaint and the attached Declaration, the Court finds that the allegation described above fails to establish that Officer O'Neill acted unconstitutionally. The Plaintiff has not provided factually specific allegations that Officer O'Neill acted without probable cause to arrest the Plaintiff. Admittedly, the Plaintiffs ' Comp la int alleges that Plaintiff Thomas was not subsequently prosecuted for disorderly conduct. Based upon this fact, the Plaintiffs conclude by way of inference that no probable cause existed for Officer O'Neill to arrest Thomas. However, the Plaintiffs ignore the well-established rule that the decision to prosecute is left to the sound discretion of the prosecutor, Wayte v. United States, 470 U.S. 598, 607 (1985), and does not necessarily imply that the Officer arrested the Plaintiff for less than probable cause. Id.

Even assuming arguendo that Officer O'Neill lacked probable cause to arrest the Plaintiff for disorderly conduct, this does not a fortiori show that the Officer's conduct was unreasonable under Harlow's qualified immunity test. Law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to qualified immunity. Brian v. Hunter, 502 U.S. 224, 227 (1991) (citing Anderson v. Creishton, 483 U.S. 635, 641

(1987)). In the case at bar, the Plaintiffs have not alleged with specificity facts showing that Officer O'Neill acted unreasonably when he arrested Plaintiff William Thomas, nor have the Plaintiffs claimed that Officer O'Neill acted in bad faith. See Procunier v. Navarette, 434 U.S. 555, 561 (1978) (holding that qualified immunity does not apply where an officer acts in bad faith). Therefore, the Court finds that Defendant O'Neill is entitled to qualified immunity with regard to his arrest of Plaintiff William Thomas for disorderly conduct.

B. Officers O'Neill and Keness are entitled to

qualified immunity regarding Plaintiff

Thomas's sign.

The Plaintiffs' second allegation, that Officers O'Neill and Keness warned Plaintiff Thomas that failure to remove his sign would subject the Plaintiff to arrest and the sign to confiscation, similarly fails to overcome the Defendants' qualified immunity claim. Upon consideration of the Plaintiffs' Complaint and submissions in this respect, the Court finds that the Plaintiffs have not established that a clearly established right was effected by the Defendants' actions, or that the Defendants acted unconstitutionally or unreasonably.

As the Plaintiffs concede, 36 C.F.R. 7.96(g)(5)(x)(B) prohibits the use of signs in the Park with several limited exceptions. It also prohibits the erection of "structures" in the Park, including props and displays. 36 C.F.R.

7.96(g)(5)(x)(A)(4) . The Plaintiffs have not asserted that their sign did not fall within either of these statutory bans. Thus, given the Officers' plain statutory authority for warning the Plaintiffs regarding the use of their sign in the Park, the Court finds that the Plaintiffs have not established that a clear right was implicated by the Officers' actions, nor have the Plaintiffs shown with sufficient specificity that the Officers acted unreasonably in this respect. Therefore, the Court holds that the Officers are entitled to qualified immunity regarding this factual claim.

C. Officers O'Neill and Keness are entitled to

qualified immunity regarding Plaintiff Concepcion

Picciotto's cooler.

The Plaintiffs' claims regarding Plaintiff Concepcion Picciotto's cooler also fail to implicate a clearly established right or show unreasonable action by the Officers. The Plaintiffs claim that Officers O'Neill and Keness threatened to arrest Plaintiff Concepcion under the "CFR" unless she removed a plastic cooler from the Park. Amended Complaint, p. 5. The Court finds that this allegation does not implicate a clearly established right. The Plaintiff has not alleged that the cooler related in any way to her First Amendment expressive activities, nor can the Court divine any other right implicated in this regard.

In addition, the Plaintiff has not established that the Defendants acted unreasonably regarding the cooler. As the

Defendants point out, 36 C.F.R. § 7.96(g)(5)(x)(A) (4) prohibits the placement or use of "structures" in the Park, including "crates," "boxes or other enclosures," and "similar types of property which might tend to harm park resources including aesthetic interests." 36 C.F.R. § 7.96(g) (5)(x)(A)(4). The Court finds that the Officers could reasonably interpret these provisions of the regulation as encompassing the cooler possessed by the Plaintiff. Therefore, the Court holds that the Defendants are entitled to qualified immunity with respect to this factual allegation.

D. Officers O'Neill and Keness are entitled to

qualified immunity regarding the Plaintiffs'

allegedly unlawful camping.

The Plaintiffs next allegation is that Officers O'Neill and Keness kicked the Plaintiffs, prodded them with nightsticks, and banged on the Plaintiffs' signs after claiming that the Plaintiffs violated the ban on camping in the Park provided in 36 C.F.R. § 7.96(i). The Plaintiffs contend that they were not camping in the Park within the meaning of section 7.96(i).

Upon review of the Plaintiffs' Amended Complaint, the applicable law, and the filings by the parties, the Court finds that the Defendants are entitled to qualified immunity regarding this factual allegation because the Plaintiffs have not sufficiently established that a clear right is at issue. The Plaintiffs only claim in this respect is that the Officers violated the Plaintiffs' First Amendment rights. However, the Plaintiffs

have not specified that they were engaged in expressive activities at the time of the Officers' alleged actions. Indeed, it is notable that while other portions of the Plaintiff's Complaint are very fact specific, see, e.s., Part IV, infra, the Plaintiffs do not describe with any specificity what activities they were engaged in when the Officers cited them with violating the camping provisions in 36 C.F.R. § 7.96(i).[4]

Consequently, because of the Plaintiffs' failure to articulate that a clearly established right was implicated by the Officers' conduct, the Court finds that the Officers are entitled to qualified immunity regarding this factual allegation.

IV. DEFENDANTS STEPHEN O'NEILL AND ANDREW KENESS ARE

NOT ENTITLED TO QUALIFIED IMMUNITY FROM DAMAGES

REGARDING THE PLAINTIFFS' BISPLAY OF FLAGS

The Plaintiffs' allegations regarding the flags they exhibited in the Park are far more troubling. The Plaintiffs allege that Officers O'Neill and Keness threatened to arrest plaintiff Concepcion Picciotto unless she removed two flags from the Park. Amended Complaint, p. 4. Because of the Officers' threats, Ms. Picciotto removed the flags. Id. Several days later, Plaintiff William Thomas again placed the flags in the Park, and the Officers allegedly threatened to arrest Thomas and confiscate the flags.

[4 Assuming arguendo that the Plaintiffs did establish that a clear right was at issue, the ambiguity of the Plaintiffs' Complaint in this respect would preclude the Court from determining whether the Officers acted unreasonably under the circumstances.

Id.

The Plaintiffs argue that these actions by the Officers unconstitutionally chilled the Plaintiffs' First Amendment rights. At bottom, the Plaintiffs assert that the very C.F.R. regulations which govern expression in Lafayette Park authorized the Plaintiffs' exhibition of the flags. Specifically, the Plaintiffs allege that they were entitled to display the flags in the Park without a permit under the "Small Group" permit exemption located at 36 C.F.R. § 7.96(vii)(E), and because the Plaintiffs possessed a valid permit for the flags. Amended Complaint, p. 4.

In response to these claims, the Defendants argue that even if the "Small Groupn exemption" applied to the Plaintiffs, and even assuming their permit was valid, the Plaintiffs nevertheless violated 36 C.F.R. § 7.96 et seq. because the flags exceeded the size limitations allegedly established in those regulations. To support this contention, the Defendants refer to an Order issued by distinguished Judge Joyce Hens Green in a separate proceeding, which refers to the Defendants' contention in that proceeding that the Plaintiffs' flags were oversized. Order, Oct. 12, 1990, Civ. No. 88-3130, p. 1.[5]

After scrutinizing 36 C.F.R. § 7.96, Judge Green's Order, and the filings by the parties, the Court finds that the Plaintiffs

[5 Judge Green's Order dealt with the confiscation of the present Plaintiffs' flags by Park Police because the flags allegedly "were affixed to a sign, therby making the signs larger than permitted by regulation." Order, p. 1. After receiving word from the Park Police that the Police did not intend to seek criminal charges against the Plaintiffs, Judge Green ordered the Police to return the flags to the Plaintiffs. Id. at p. 2.]

have overcome the Defendants' claim of qualified immunity. First, the Plaintiffs have established that a clearly established right is implicated by the Defendants' actions. It is beyond doubt in this Nation's jurisprudence that nonspeech conduct sometimes qualifies as expressive conduct protected by the First Amendment. Tinker v De Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969). Plainly, the alleged coercion of the Plaintiffs not to display their flags in the case at bar involves such protected nonspeech conduct, See Strombera v. California, 28j U.S. 359, 369-70 (1931) (striking down prohibition on display of red flags as an emblem of "opposition to organized government"); Milwavkee Mobilization for Survival v. Milwaukee City Park Comm'n, 477 F. Supp. 1210, 1218 (E.D. Wis. 1979) (striking down prohibition on display of flags without written permission of a Park Commission).

Second, the plaintiffs have claimed with sufficient specificity that the Officers acted unreasonably in relation to that clearly established right by threatening the Plaintiffs with arrest and in fact succeeding in forcing the Plaintiffs to remove their flags from the Park. In this regard, the Court finds the Defendants claim that they acted reasonably because the flags exceeded size limitations established in 36 C.F.R. § 7.96 et sea. unavailing. The Court has not discovered any provision in section 7.96 that limits the size of flags displayed in the Park. Indeed, the regulations appear to contradict the Defendants' claim, since the regulation don't specifically mandate that the "Small Group" exemption which the Plaintiffs assert applies to their group "does

not restrict the use of portable signs or banners," a category which appears to encompass the Plaintiffs' flags. 36 C.F.R. § 7.96(g) (vii)(E). Perhaps the Defendants have in mind section 7.96(g) (x) (B), which places size restrictions on stationary signs. In that case, it is unclear whether this provision even applies to flags. Assuming arguendo that the sign-size limits do apply, the Court finds that the Defendants have not provided sufficient evidence that the Plaintiffs' flags actually exceeded these size limitations, The Defendants only "proof" supporting this proposition is Judge Green's Order referred to above. However, the Order does not make a finding of fact that the present Plaintiffs' flags were too large. Instead, Judge Green notes only that the "defendants contend that the flags were seized because they were affixed to signs~ that were too large. Order, Oct. 12, 1990, Civ. No. 88-3130, p. 1 (emphasis supplied) . [6] Such bare-bones allegations do not suffice to contradict the specific factual allegations presented in the Plaintiffs' Amended Complaint.[7]

Given the Plaintiffs' specific allegation that they lawfully displayed the flags in the Park under the "Small Group" permit exemption, their claim that they actually possessed a valid permit

[6 As is evident, the Order at most suggests that the sisns used by the Plaintiffs were too large, not the flags themselves.]

[7 The lack of regulatory authority upon which the Officers could rely regarding the flags renders this factual allegation quite distinct from the other four. In those allegations, the Officers' actions reasonably related to enforcing specifically applicable regulatory provisions. See, e.g., Part III-B (noting that specific provisions of 36 C.F.R. Sec. 7.96 et seq. govern display of signs in the Park) . No such regulatory authority exists regarding the present allegation.]

for the flags, and in light of the silence of section 7.96 regarding any permissible regulation of flags by Park Police, the Court finds that the Plaintiffs have met their burden of presenting preliminary allegations that a clearly established right is at issue and that the Defendants allegedly acted unreasonably in relation to that right. Consequently, the Defendants are not entitled to qualified immunity with respect to this factual allegation by the Plaintiffs.

CONCLUSION

For the reasons articulated above, the Court finds that all damage claims against Defendants "X" and Robbins must be dismissed. In addition, the damage claims against Defendants O'Neill and Keness must be dismissed except for the Plaintiffs' factual allegation regarding the display of flags. Finally, the Court finds that Defendant "X" must be dismissed as a party to this suit because the Plaintiffs have not provided a legal basis for bringing claims against him. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.

_______________________

CHARLES R. RICHEY

UNITED STATES DISTRICT JUDGE