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.
1
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.
2
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.
3
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.
4
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.]
5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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).]
14
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
14
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
15
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
16
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
17
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
18
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.]
19
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