Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 95-1018
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

MEMORANDUM OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE

APPEARANCES

FOR THE PLAINTIFF: William Thomas, pro se.

FOR THE DEFENDANTS: Marina Utgoff Braswell, Assistant United States Attorney, and Eric H. Holder, Jr., United States Attorney, along with Bruce Brennan, Assistant Corporation Counsel, with whom Garland Pinkston, Acting Corporation Counsel, and Charles F. C. Ruff, Corporation Counsel, and Martin L. Grossman, Deputy Corporation Counsel, and William J. Earl, Chief, Major Case Section, Corporation Counsel, were on the briefs.

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INTRODUCTION

Before the Court are the Motions of the Federal Defendants and the District of Columbia Defendants to Dismiss or, in the alternative, for Summary Judgment. Also before the Court is the Plaintiff's Motion to Consolidate. Upon consideration of the Plaintiff's Amended Complaint, the filings by the parties, and the applicable law, the Court shall grant the Defendants' Motions for Summary Judgment, shall declare the Defendants' Motions to Dismiss as moot, and shall deny the Plaintiff's Motion to Consolidate.

BACKGROUND

On September 12, 1994, at 1:49 a.m., a small airplane crashed onto the South Lawn of the White House, killing the pilot but injuring no one else. See Background Information on the White House Security Review at 1 (May 1995) (`Background Information") In order to avoid such threats to the national security in the future, then-Secretary of the Treasury Lloyd Bentsen ordered the formation of a White House Security Review (the `Review") to examine the feasibility of techniques and measures to safeguard the White House Complex from air and ground assaults. Id. at 3.

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Shortly thereafter, Francisco Martin Duran fired twenty-nine round! from a semj-automatic assault rifle into the White House. Id. at 2. Subsequently, four additional security breaches at the White House were reported during the pendency of the Review, although none posed a serious threat to the President. Id. at 4.

After an exhaustive investigation, the Review reported that it was

not able to identify any alternative to prohibiting vehicular traffic on Pennsylvania Avenue that would ensure the protection of the President and others in the white House Complex from explosive devices carried by vehicles near the perimeter. [Further,l the Review must recommend excluding all vehicular traffic from the area between Madison Place and 17th Street and converting this segment to a pedestrian mall. There is significant evidence that this plan should significantly enhance the accessibility of the White House to visitors. . . .

Id. at 45-46. Based on the Review's recommendation, and pursuant to his authority to direct the Secret Service to protect the First Family, see, 18 U.S.C. 3056; 3 U.S.C. 202, Secretary of the Treasury Robert E. Rubin ordered that

1. The Director, United States Secret Service, is directed to close to vehicular traffic the following streets in order to secure the perimeter of the White House: (i) The Segment of Pennsylvania Avenue, Northwest, in front of the White House between Madison Place, Northwest, and 17th Street, Northwest; and (ii) State Place, Northwest, and the segment of South Executive Avenue, Northwest, that connects into State Place, Northwest.

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60 Fed. Reg. 28435 (May 31, 1995). On May 26, 1995, the Secret Service published a Final Rule, explaining that it had "closed to public vehicular traffic" certain streets near the White House Complex, including the portion of Pennsylvania Avenue at issue here, the 1600 block. 60 Fed. Reg. 27882 (May 26, 1995). However, these streets remain open to pedestrians, joggers, bikers, and rollerbladers, and allow the passage of emergency police, fire, and medical vehicles.

The District of Columbia, and its officers, retain the authority to regulate the use or occupation of public space in the District, including its streets, avenues, highways, footways, sidewalks, parking, or other public spaces. See, D.C. Mun. Regs. ("D.C.M.R.") tit. 24 100.1; 18 D.C.M.R. 2001.2. Under District of Columbia regulations no permit for a proposed use or occupation of a public space can be issued if it would "endanger the public" or "substantially interfere with pedestrian or vehicular traffic." 24 D.C.M.R. 100.1. The regulations also provide that "[n] o person shall construct, place, leave, or cause to be constructed, placed, or left on any public space any obstruction to travel, without first obtaining a permit from the District." 18 D.C.M.R. 2001.2.

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In the afternoon of May 26, 1995, District of Columbia Police Captain Radzjlowski observed the Plaintiff [1] and another individual dragging a cumbersome structure into the 1600 block of Pennsylvania Avenue, which had been closed to public vehicular traffic. Trans. of TRO at 27. The officer described the structure as a large, "sawed off lifeguard chair," having a sign and a seat. Trans. of TRO at 29-30. The Plaintiff did not seek or obtain a permit from the District of Columbia for placement of his structure on Pennsylvania Avenue.

Captain Radzilowski and another District of Columbia officer approached the Plaintiff and informed him that he would have to remove his structure from the street. When the Plaintiff refused to do so, Radzilowski ordered him to remove his structure. The Plaintiff again refused and was arrested and charged with failure to obey a police officer. Amended Complaint, 22-34.


[1 The Plaintiff in this action, William Thomas, is no stranger to the Court. Mr. Thomas proclaims that, "[s]ince 1981 in the exercise of his religious beliefs[, he] has regularly maintained a continuous presence on the White House sidewalk and southern part of Lafayette Park for the purpose of communicating on issues of peace and social justice." Amended Complaint at 3. Throughout the period he has been conducting his vigil, the Plaintiff has filed numerous claims with this Court that he has been `arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities." Mem. in Support of Plaintiff's Opposition to Summ. Jud. at 24 n.15.]

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On May 30, 1995, the Plaintiff filed suit against the United States of America, President Clinton, the Secretary of the Treasury, and the Secret Service (the "Federal Defendants"). The Plaintiff also named Captain Radzilowski and the District of Columbia (the "District of Columbia Defendants"). In his Amended Complaint, the Plaintiff seeks to enjoin the Defendants permanently from closing, or enclosing Lafayette Park, or sections thereof and from making any further changes to Lafayette Park. Amended Complaint at 3.

A number of the Amended Complaint's sixteen Counts challenge the action of the Federal Defendants in restricting public vehicular traffic from portions of streets around the white House complex. Other of the Plaintiff's Counts challenge an alleged plan by the Federal Defendants to enclose Lafayette Park with permanent barriers or to close or diminish access to the Park in some unspecified manner. The Plaintiff's remaining Counts challenge the action of the District of Columbia Defendants in arresting the Plaintiff for placing a structure having a sign and a seat on the 1600 block of Pennsylvania Avenue and refusing to remove that structure. The Plaintiff claims that the foregoing actions by the Defendant s violated a panoply of his rights , including those guaranteed him under the First, Fourth, Fifth, and Ninth Amendments

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to the Constitution, the Administrative Procedure Act ("APA"), the National Environmental Protection Act (`NEPA"), and 36 C.F.R. 1.5.

The Plaintiff filed the instant case along with an application for a Temporary Restraining Order ("TRO"). Following a hearing, the Court denied the TRO in an order entered May 31, 1995. On June 14, 1995, the Federal Defendants in this case filed a Motion to Dismiss or, in the alternative, for Summary Judgment, as did the District of Columbia Defendants on June 21, 1995. The Plaintiff filed an Opposition and moved that the Court consolidate the present action with an earlier filed action, Thoma s v. United States, Civ. No. 94-2747 (D.D.C. filed Dec. 22, 1994) ("Thomas I") The Defendants oppose the Plaintiff's Motion to Consolidate, which the Court will address first.

DISCUSSION

I. THE PLAINTIFF'S MOTION TO CONSOLIDATE

Pursuant to Fed. R. Civ. P. 42, the Plaintiff has moved to consolidate the present case with a case filed previously by the Plaintiff, Thomas I. That prior lawsuit relates to his activities

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in Lafayette Park and includes a challenge to the manner in which the National Park Service enforces its regulations in Lafayette Park.

Under Rule 42, the Court may consolidate actions to avoid unnecessary costs or delay when those actions involve a common question of law or fact. Fed. R. Civ. P. 42. The Court finds that there are insufficient issues of law and fact in common between the present case and Thomas I to warrant consolidation. Moreover, a final judgment has been entered in Thomas I. See, Thomas v. United States, Civ. No. 94-2747 (D.D.C. Aug. 23, 1995) (Memorandum Opinion and Order) . Consol idat ion is inappropriate under these circumstances and the Court shall deny the Plaintiff's motion.

II. THE DEFENDANTS' MOTION TO DISMISS OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Upon consideration of the entire record, the Court concludes that the

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Plaintiff does not have standing to challenge the action of the Federal Defendants in restricting access to portions of the streets in the vicinity of the White House Complex or in allegedly planning unspecified future restrictions. The Court further concludes that the Plaintiff's rights were not violated when he was arrested by District of Columbia officers for placing his sign in Pennsylvania Avenue in violation of District of Columbia law and refusing to remove the sign when asked by the officers. Thus, the Court conc lude s that summary judgment in favor of the Defendants is appropriate.

A. The Plaintiff Lacks Standing To Challenge
The Action Of The Federal Defendants.

It is well-settled that the courts do not "recognize a generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power." United States v. Hays, No. 94-558, slip op. at 6 (U.S. June 29, 1995). In order for a Plaintiff to have standing to sue, "[f]irst, the plaintiff must have suffered an `injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. "Second, there must be a causal connection

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between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." (citation omitted). Furthermore, as the party seeking to invoke the Court's jurisdiction, it is the Plaintiff's burden clearly to allege facts demonstrating that he is a proper party to the suit. Warth v. Seldin, 422 U.S. 490, 518 (1975) (citation omitted).

The Plaintiff complains that the restriction of public vehicular traffic near the White House Complex was accomplished in violation of the APA notice and comment rulemakipg provisions, the "NEPA requirements for the preparation of Environmental Impact Statements," the C.F.R. provisions governing the closure of public parks, the arbitrary and capricious standard of the APA, the First and Fifth Amendments, and "the guidelines articulated by the Supreme Court in United States v. O'Brien, 391 U.S. 368 [(1968)]." Amended Complaint , Count s III-XI . The Plaintiff has also complained that the Federal Defendants plan to further alter Lafayette Park in some unspecified manner in violation of the First and Ninth Amendments. Id. Counts I-II.

Besides voicing generalized grievances and concerns with the action of the Federal Defendants, the Plaintiff has failed to allege facts that demonstrate that he, personally, has been

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adversely affected in a concrete and particularized manner by the traffic restrictions in portions of streets surrounding the White House Complex. The Plaintiff does not allege, for example, that he drives in this area and thus has been affected by the restriction of vehicular traffic. At most, the Plaintiff has alleged that he "regularly communicate[s] with the general public on issues of broad concern, in Lafayette Park[, and] seeks to be available to those who may be interested in the issues he raises on a twenty- four hour basis." Amended Complaint at 2. However, he does not allege that the vehicular traffic restriction has forced him to move from his location in the Park, where in fact he continues to reside, or that the action prevents people from accessing the park to witness his vigil. In this regard, the Court notes that the barriers around the Park allow pedestrian entry and that the Review specifically determined that "[t]here is significant evidence that this plan should significantly enhance the accessibility of the White House to visitors." Background Information at 45-46 (emphasis added). Finally, the Plaintiff does not specify any adverse environmental impacts that the traffic restrictions have or will have on him. The Court recognizes that on one occasion the Plaintiff was prevented from maintaining his sign and seat structure in the 1600 block of Pennsylvania Avenue, but this action

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was taken by the District of Columbia, not the Federal, Defendants, and is addressed infra.

Similarly, the Plaintiff has not alleged any specific injury in connection with his allegation that the Federal Defendants plan to take further unspecified actions near the White House Complex. The vague allegations by the plaintiff that further action would "chill, disrupt or terminate the exercise of [his] constitutionally-protected expressive religious activities . . . in violation [of] rights and privileges guaranteed under the First Amendment" and that it would `violate the unenumerated right to remain undisturbed in a public park, guaranteed . . . under the Ninth Amendment" do not amount to allegations of actual or imminent harm to the Plaintiff. Again, the Plaintiff does not adduce any evidence that he has been prohibited from maintaining his vigil in Lafayette Park or from communicating his message to members of the public.

The Plaintiff simply has not alleged facts that would establish how the restriction of vehicular traffic around the White House Complex or further unspecified future action would affect him in any concrete and particularized manner. At most, the Plaintiff has asserted generalized and conjectural grievances, of the type not cognizable by the federal courts. Therefore, the Court must

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grant the Defendants' Motion for Summary Judgment on Counts I-XI of the Amended complaint.

B. The Plaintiff's Rights Were Not Violated When He Was Arrested By District Of Columbia Officers For Placing His Sign In Pennsvlvania Avenue In Violation Of District of Columbia Law And Refusing To Remove The Sign When Asked To Do So By The Officers.

The remaining Counts in the Plaintiff's Amended Complaint concern the arrest of the Plaintiff by District of Columbia police officers when the Plaintiff placed a structure having a sign and a seat in the closed portion of Pennsylvania Avenue and refused to remove the sign upon request by the officers. The Plaintiff claims that the action of the officers was "arbitrary and capricious" and deprived him of rights guaranteed under the First, Fourth, and Ninth Amendments. Amended Complaint , Counts XII-XVI.[2] Upon


[2 The Plaintiff's Opposition states that "(p)laintiff also cites to Bivens v. Six Unknown Named Asents of Federal Bureau of Narcotics, 403 U.S. 388 (197[1]), and 42 U.S.C. [] 1983 and 1985(3)." The Plaintiff's claims concerning his arrest by District of Columbia officers may be brought pursuant to 42 U.S.C. 1983. The Court notes, however, that the Bivens case concerns actions against federal agents , and is, therefore, inapposite to the situation presented here. Furthermore, to the extent that the plaintiff's Opposition indicates any intent by the plaintiff to assert a conspiracy claim under 1985(3), the Court finds that the conclusory and factual allegations set forth in the Amended Complaint do not even begin to meet the specificity requirements for such an allegation. See, Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).]

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consideration of the entire record, the Court concludes that Summary Judglnent in favor of the Defendants is appropriate with respect to Counts XII-XVI of the Amended Complaint.

1. The Plaintiff's First Amendment Rights Were Not violated.

The First Amendment protects expressive activity involving "speech" in a public forum. See United States v. Musser, 873 F.2d 1513, 1517 (D.C. cert. denied, 493 U.S. 983 (1989) Consistent with the First Amendment, however, such activity is subject to reasonable time, place, and manner restrictions that are (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication. United States v. Grace, 461 U.S. 171, 176 (1983) (citation omitted). The District of Columbia provision relied upon in support of Defendant Radzilowski's action here, 24 D.C.M.R. 100.1, satisfies all three requirements.

Section 100.1 provides:

Occupation of public space beyond the extent permitted by existing law or regulation, or as those laws or regulations may be amended from time to time, is hereby forbidden. The Mayor, however, may authorize the issuance of a permit for a use of public space directly connected with and subordinate to another use of that space which is specifically permitted by some other law or regulation, if the Mayor, on the recommendation of the Public Space Committee, finds that the

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proposed additional use will not adversely affect the public interest or violate any of the following criteria:

(a) The proposed additional use will not endanger the public;

(b) The proposed additional use will not substantially interfere with pedestrian or vehicular traffic; and

(c) The proposed additional use will not increase the area of public space that the applicant for the permit is authorized to use by other law or regulation.
24 D.C.M.R. 100.1. Clearly, section 100.1 a content-neutral regulation. It speaks to the use and occupation of public space in a safe and non-obstructive way. It does not refer to the content of any message and applies to all persons seeking to use and occupy public space, regardless of any message a particular person may wish to convey by his or her proposed use or occupation. Moreover, that the regulation may have had an incidental effect on the Plaintiff's expression here does not alter the content-neutral nature of the regulation. See, Clark v. Community for Creative Non- Violence, 468 U.S. 288, 294 (1984).

Section 100.1 is narrowly tailored to serve an import ant governmental interest. The regulation expressly prohibits uses that will "endanger the public" or "substantially interfere with pedestrian or vehicular traffic." Surely it cannot be contested that public safety and passage of traffic in public spaces are

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important governmental interests. The Plaintiff argues that his sign and seat structure will not substantially interfere with traffic because the 1600 block of Pennsylvania Avenue has been closed to general vehicular traffic; however, emergency vehicles frequently trave1 the 1600 block and must be able to proceed without hindrance from large, stationary structures in the roadway if an emergency arises. The Plaintiff also points out that pedestrian activity continues unabated in the 1600 block, which also may interfere with traffic; however, while pedestrians can quickly evacuate the street in the event of an eme rgency , stationary and cumbersome structures, such as the Plaintiff's, would present a substantial interference to emergency vehicles. The Court concludes that section 100.1 is tailored to prevent those uses which endanger the public and interfere with traffic and that the Plaintiff's structure, deposited directly in Pennsylvania Avenue, would both endanger the public and interfere with vehicles during an emergency.

Finally, the regulation leaves alternative channels of communication open to the Plaintiff. The Plaintiff maintains his presence in Lafayette Park. He is not prohibited from displaying his sign and seat structure there, or from relaying his message in any manner in Lafayette Park or the restricted portion of

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Pennsylvania Avenue, as long he complies with reasonable time, place, and manner restrictions. Consistent with the First Amendment, depositing a stationary, cumbersome structure in Pennsylvania Avenue so as to create an impediment to emergency traffic and, thus, endanger the public, simply is not a channel of communication available to the Plaintiff.

Because section 100.1 is content-neutral, is narrowly tailored to promote a significant government interest, and allows for sufficient alternative channels of communication, it is valid under the First Amendment as a reasonable regulation of the manner and place of expres sive speech. Thus, the Plaintiff's arrest for violating section 100.1 did not encroach upon his First Amendment rights.

2. The Plaintiff's Fourth Amendment Rights Were Not Violated.

The Plaintiff also claims that his rights guaranteed under the Fourth Amendment were violated when the District of Columbia officers arrested the Plaintiff after asking him to remove his structure from Pennsylvania Avenue. The court cannot agree.

In an action for false arrest, the question is "whether the arresting officer was justified in ordering the arrest of the

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plaintiff." Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978). Here, Captain Radzilowski was justified in arresting the Plaintiff because he acted in good faith and the arrest was reasonable under the circumstances. Id. at 176.

The District of Columbia Code provides that "[a] law enforcement officer may arrest, without a warrant having previously been issued therefor . . . a person who he has probable cause to believe has committed or is committing an offense in his presence." D.C. Code 23-581(a) (1) (B). Captain Radzilowski observed the Plaintiff occupying a space on Pennsylvania Avenue with his stationary, cumbersome structure. Reasonably believing that the Plaintiff was violating District of Columbia regulations, Captain Radzilowski asked the Plaintiff to remove his structure, The District of Columbia regulations also provide that "[n]o person shall fail or refuse to comply with any lawful order or direction of any police officer . . invested by law with the authority to direct, control, or regulate traffic." 18 D.C.M.R. 2000.2. When the Plaintiff refused to comply with Captain Radzilowski's direct order, the officer properly arrested the Plaintiff.

Captain Radzilowski personally obsewed the Plaintiff disobey a valid ordinance and his direct order. Under the circumstances, the arrest was reasonable and was made in good faith. The Court

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therefore concludes that the Plaintiff's arrest was lawful and did not violate his Fourth Amendment rights.

3. The Plaintiff's Ninth Amendment Right's were Not Violated.

The Plaintiff clalms that the District of Columbia officers violated rights guaranteed to him under the Ninth Amendment, which states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." See U.S. Const. Amend. IX. The Plaintiff asserts that he retains the right to "remain in a public place without having to suffer police harassment or interference." Trans. at 9. While citizens certainly enjoy the right to be free of police harassment or interference generally, the Ninth Amendment does not protect a person against lawful arrest when that person is committing an offense. The Plaintiff here was not merely `remain[ing] in a public place" but, rather, was violating valid District of Columbia regulations. Thus, the Plaintiff has not shown that the interest he asserts here falls within the category of those interests protected by the Ninth Amendment.[3]


[3 In his Opposition, but not in his Amended Complaint, the Plaintiff raises a claim that his arrest violated his Fifth Amendment right to due process, stating only that "Defendant Radzilowski's arrest amounts to making up the law." The Court cannot agree. The regulations pursuant to which Captain Radzilowski lawfully arrested the Plaintiff existed before the time of the Plaintiff's arrest.]

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CONCLUSION

For the foregoing reasons, the Court shall grant the Defendants' Motions for Summary Judgment and shall declare the Defendants' Motions to Dismiss as moot. The Court shall also deny the Plaintiff's Motion for Consolidation. The Court shall also issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.

August, 1995

CHARLES R. RICHEY
UNITED STATES DISTRICT COURT