Motion for Summary Affirmance



September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants


United States of America, et al., Appellees


Appellees respectfully move the Court for summary affirmance of the August 23, 1995 Memorandum Opinion and Order of the Honorable Charles R. Richey (attached hereto), granting a motion to dismiss or for summary judgment in appellees' favor. Summary disposition is appropriate because the "merits of this appeal are so clear as to make summary affirmance proper." Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.), cert. denied 449 U.S. 994 (1980); accord Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982) (per curium).


Appellants in this action, three perennial demonstrators in Lafayette Park, have brought this action against the United States, the Department of the Interior's National Park Service, the United States Park Police and individual federal employees, alleging, inter alia, that certain Park Police officers arbitrarily and "without probable cause" enforced against them certain regulations governing demonstrators in Lafayette Park. The alleged violations concern an arrest of appellant William Thomas, alleged threats of arrest and enforcement . of certain Park Service regulations


concerning activities in Lafayette Park, alleged "prodding" and "banging" of the Park Police officers' nightsticks, and the shooting of Marcelino Corneil on December 20, 1994 in front of the White House. First Amended Complaint, Record at 16. Appellants claim violation of their rights under the United States Constitution and various federal civil rights statutes. They seek declaratory and injunctive relief, as well as "nominal damages" from the individual federal officials under the authority of Bivens v. Six Unknown Asents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

In the complicated proceedings below, appellees, as defendants below, moved to dismiss the action for failure to state a claim upon which relief could be granted. Record at 13. On April 12, 1995, the District Court issued a Memorandum Opinion and Order granting defendants-appellees' motion as to all but one of plaintiffs-appellants' claims. The District Court dismissed all claims against defendant-appellee Richard Robbins, and all but one claim against appellee Park Service police officers. [1] Concluding that appellants had met their burden of presentation of preliminary allegations that appellee Park Police officers had acted unreasonably in relation to a clearly established right, the District Court ordered the matter to proceed against the officers individually on appellants' claim concerning the display of two

[1 The District Court also dismissed all claims against "Officer X," an unnamed Park Police officer who shot Marcelino Corneil and all claims concerning the shooting of Mr. Corneil. Record at 72, 73.]


flags as part of appellant Picciotto's stationary sign display.[2] Record at 72, 73.

Plaintiffs-appellants and defendants-appellees cross-moved for partial reconsideration of the District Court's April 12, 1995 Order. Record at 76, 78. In their motion for partial reconsideration, appellants disavowed any intent to raise a constitutional challenge to the Park Service regulations. Appellants asserted that their challenge related to the alleged "arbitrary enforcement" of the regulations to their display. Plaintiff's Motion for Partial Reconsideration of April 12, 1995 Order, Record at 76. Defendants-appellees moved for reconsideration of the portion of the District Court' s order concerning the flag claim, and for dismissal or summary judgment on all claims. Record at 78.

Following completion of briefing on the motions for reconsideration and defendants-appellees' motion to dismiss, the District Court issued a Memorandum Opinion and Order on August 23, 1995 dismissing all claims in this action. Record at 113. Following the District Court's August 23, 1995 ruling, appellants moved for reconsideration of the District Court's dismissal of their claims. By Memorandum Opinion and Order dated September 12,

[2 The Park Service regulation at issue in connection with appellants' flag display restricts all stationary sign displays in Lafayette Park, whether pursuant to permit or as part of a small group demonstration, to a maximum size of four feet in length, four feet in width, and one-quarter inch in thickness, and restricts the height of signs to no higher than six feet from the ground at their highest point, in any arrangement or combination. 36 C.F.R. 7.96(g)(5)(x)(B)(2) .]


1995, the District Court denied such relief. This appeal followed.


The District Court's dismissal of the claims presented in this action should be summarily affirmed, Despite the voluminous pleadings in the District Court, the issues presented in this case are straight-forward, and the controlling law is clear. Appellants seek liability on the part of appellee federal officers in their individual capacities for alleged arbitrary and abusive enforcement of Park Service regulations concerning appellants' activities as protestors in Lafayette Park. However, as the District Court's careful analysis of all of appellants' claims in both the April 12, 1995 and the August 23, 1995 decisions illustrates, the claims presented by appellants fail under the law governing individual liability of federal officers, and under the proper construction of the applicable Park Service regulations.

The law is well-settled that government officials are entitled to qualified immunity from suit for conduct arising in their official capacities. Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Procunier v. Navarette, 434 U.S. 555, 561 (1978). The framework for application of qualified immunity to such claims is set out in Harlow v, Fitzgerald, 457 U.S. 800 (1982), where the United States Supreme Court confirmed that government officials are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818; see also Hunter v. District of Columbia, 943 F.2d 69, 75 (D.C. Cir.


1991) . In addition, it is settled that in seeking liability against federal officials in their individual capacities, the complaint must allege a specific constitutional deprivation of plaintiffs' rights by that defendant supplemented with specific factual allegations. Failure to allege a specific, factually detailed constitutional violation deprives the Court of subject matter jurisdiction over the claim and fails to state a claim as to any individual liability for actions taken in an official capacity. In such a case the complaint must be dismissed. See Carlson v. Green, 446 U.S. 14, 18 (1980); Baker v. McCollan, 443 U.S. 137, 140 (1979); Davis v. Passman, 442 U.S. 228, 239 (1979).

This Circuit has held on several occasions that Bivens plaintiffs are held to a "heightened pleading standard" which requires plaintiffs "at the very least [to] specify the 'clearly established' rights they allege to have been violated with precis[ion]." Martin v. Malhoyt, 830 F.2d 237, 253, reh. denied 833 F.2d 1049 (D.C. Cir. 1987), guotins Smith v. Nixon, 807 F.2d 197, 200 (D.C. Cir. 1986), and Hobson v. Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984) , cert. denied, 470 U.S. 1084 (1985) . This heightened pleading standard is applicable to all Bivens cases no matter what allegations are made. Martin v. Malhoyt, 830 F.2d at 253 and n.40. See also, Hunter v. District of Columbia, 943 F.2d at 75; Sieqert v, Gilley, 895 F.2d 797 (D.C. Cir.), aff'd on other srounds, 111 S. Ct. 1789 (1991); Whitacre v. Davey, 890 F.2d 1168 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 3301 (1990); Hobson, 737 F.2d at 29-31; Martin v. D.C. Metro~olitan Police Dept., 812 F.2d


1425, 1434-36 (D.C. Cir. 1987).[3]

Properly applying the principles of qualified immunity and reviewing the Complaint by the heightened pleading standard, the District Court determined in its April 12, 1995 decision that with respect to all but appellan~s' claim concerning their display of flags, appellees were entitled to dismissal of the claims brought against them in their individual capacities. The District Court found that appellants' allegations of negligent supervision by appellee Robbins, false and threatened arrest, arbitrary enforcement of a Park Service regulation to appellant Picciotto's cooler, and prodding and banging with the officers' nightsticks did not state a claim that the officers violated appellants' clearly established constitutional rights or that they had acted unreasonably or with improper motive towards appellants. April 12, 1995 Memorandum Opinion at pp. 12-15. However, based upon the District Court's understanding of the nature of the claims presented in this action at the time of its April 12, 1995 decision, it found that the enforcement of the Park Service sign regulation to appellant's display of flags was not reasonable. In finding no reasonable basis for the officers' conduct, the District Court ordered the flag claim to proceed against Officers O'Neill and Keness in their individual capacities. April 12, 1995 Memorandum Opinion at pp. 17-21.

[3 Part IV of this opinion was at one point vacated, 817 F.2d 144 (D.C. Cir. 1987), only to be reinstated subsequently. 824 F.2d 1240, 1246 (D.C. Cir. 1987).]


Based on the pleadings by the parties following the April 12, 1995 rulings, and with appellants' clarification that they do not challenge the constitutionality of the sign regulation in this action, in its August 23, 1995 Memorandum Opinion, the District Court ruled that appellants had failed to present a ground for reconsideration of its April 12, 1995 Memorandum Opinion and Order. The District Court further ruled that in view of the appellants' clarification of their claims, the portion of the April 12, 1995 Order concerning the flag claim was moot. August 23, 1995 Memorandum Opinion at pp. 4-5, n. 2. Thus, the District Court proceeded with an analysis of the claim of arbitrary enforcement of the Park Service sign regulations to appellants' flag display. After review of the regulations at issue and other Park Service regulations that provided guidance on the proper application of the sign provisions, the District Court correctly determined that appellants had not stated claims of arbitrary enforcement of the Park Service regulatipns, and that the appellee officers had acted reasonably in requiring appellants to remove the flags from the display.

Supporting the District Court's decision was the undisputed fact that the flag display consisted of the attachment of two flags on poles to each side of appellant Picciotto's stationary sign. The flag poles extended to a height more than six feet from the ground. Memorandum Opinion at p. 8. The District Court concluded that this arrangement of the flags ran afoul of the Park Service regulations which restricted all signs that were not being hand


carried to a height of no more than six feet, and that the broad definition of a "sign" under the regulations covered appellants' flag-type banners. Memorandum Opinion at p. 9. The District Court also appropriately rejected appellants' contention that the fact that appellant Picciotto had, at one time, obtained a permit to display two signs and two flags authorized the manner in which the flags were displayed. The District Court found that the Park Police officers were not deprived of their authority to enforce the sign-size regulations by the fact that appellant Picciotto possessed a permit, since the permit did not authorize the arrangement of the signs or the flags in a manner otherwise prohibited by the sign regulations. August 23 Memorandum Opinion at p. 10. As the District Court correctly noted, the "permit expressly required Picciotto to read and adhere to the Park Service regulations concerning signs, structures, and camping in Lafayette Park." August 23 Memorandum at p. 3. The District Court therefore soundly concluded that "[w]ith or without the permit, the [appellants] could not exceed the sign-size regulations and the officers acted reasonably in requiring removal of the flags from the Cappellants'] displays." Memorandum Opinion at p. 10.

In view of the Park Police officers' reasonable and proper application of the Park Service regulations~ to the flag display, the District Court concluded that appellants had failed to state a claim of unreasonable or arbitrary enforcement and the claims against them must be dismissed. Under these facts and the controlling law, the dismissal of all claims asserted in this


action was clearly proper.


Based on the foregoing and the record as a whole, appellants plainly have failed to state a constitutional violation that would entitle them to relief, and the District Court was correct in its dismissal of all claims in this action. Therefore, the judgment of the District Court should be summarily affirmed.

United States Attorney

Assistant United States Attorney

Assistant United States Attorney