The February 23 Order also consolidated plaintiffs' 1987
claims against the various Department of the Interior officials
with plaintiffs' 1984 claims against those officials.
Defendants in these consolidated cases move to
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dismiss or for summary judgment. For the reasons stated in this
Memorandum, an accompanying Order grants that motion and
dismisses both complaints without prejudice.
I.
plaintiffs have attempted to maintain a continuous
antinuclear demonstration in front of the White House, along
Pennsylvania Avenue, and in Lafayette Park. One of the
individual plaintiffs commenced his vigil in 1981; other
plaintiffs joined throughout the following six years.
The February 23, 1988 Order recounts in some detail the factual
circumstances of plaintiffs' vigil
and of the communicative activity in which they are engaged. The
complete factual narrative is
not repeated here.
Over the course of their vigil, plaintiffs and federal law
enforcement officials have engaged in an ongoing confrontation
arising from plaintiffs' exercise of First Amendment rights. At
the core of this chronic struggle lie several Department of the
Interior regulations that establish the time, place, and manner
of First Amendment activity in Lafayette Park. See 36 C.F.R. §
7.96(g)(5) (1987). Among other things, these regulations specify
the size and number of signs that may be in the possession of an
individual in the park and require that someone "attend" the
signs at all times. see 36 C.F.R. § 7.96(g)(5)(x)(B)(Z)· For
purposes of the regulation, to "attend" one's sign is to remain
within three feet of it. Id. Most importantly, for purposes of
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this litigation, the regulations proscribe "camping" in Lafayette
Park. Cf.36 C.F.R. §§ 7.96(g)(5)(x), 7.96(i).
It is undisputed that plaintiffs have been repeatedly
warned, cited, arrested, and convicted for violating one or
another of these regulations. Plaintiff Thomas alone has been
tried for such infractions in this Court at least a dozen times
since 1982. See Federal Defendants' Motion to Dismiss or for
Summary Judgment, Statement of Material Facts, paras. 1-10
(recounting specific instances of citation and arrest).
Plaintiffs challenge these regulations on two fronts.
Claiming a cause of action under 28 U.SIC. Sec. 1983, 1985(3),
and 1986, as well as Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971), and various common law tort theories, plaintiffs seek
damages both against those responsible for promulgating the
regulations and against those who have enforced them against
participants in the vigil. Moreover, plaintiffs pray for
declaratory and injunctive relief invalidating the regulations
themselves on constitutional grounds.
II.
Plaintiffs' damage claims against the federal defendants
must fail. Those claims center on a theory that the regulations
themselves, and the emergent pattern of their enforcement, reveal
a conspiracy among Department of the Interior and Park Police
officials to quell plaintiffs'
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twenty-four hour First Amendment vigil in Lafayette Park. The
1987 complaint enlarged the conspiracy theory to embrace private
defendants who allegedly contributed to the plot by publishing
unflattering criticism of plaintiffs' demonstration and the
content of their expression.
Neither the 1984 nor the 1987 complaint, however, satisfies
the standards that govern the assertion of such constitutional
tort claims under sections 1983 or 1985(3). As elaborated in
some detail in the February 23, 1988 Order, section 1983 cannot
support an action against federal actors arising out of actions
taken under color of federal law, as is the case when federal
officials promulgate and then enforce a federal regulation. See
Thomas v. News World Communications, 681 F. Supp. 55, 67 (D.D.C.
1988), and cases there collected.
Moreover, again as discussed in the previous Order, the
claims advanced in both actions fall short of the heightened
pleading standard imposed on civil rights complaints under Hobson
v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984), cert denied, 470
U.S. 1084 [1985), and Martin v. Malhoyt, 830 F.2d 237, 258 (D.C.
Cir. 1987). Indeed, as Martin emphasizes, the policies underlying
the imposition of a fieightened pleaading standard are most
compelling where, as here, civil rights claims are brought
against a public official. The requirement that plaintiffs
asserting such claims "come forward with 'nonconclusory
allegations of
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evidence [if they are] to proceed to discovery on the claim'"
operates by design "to protect federal officials' freedom of
action from the 'fear of damage suits.'" Martin, 830 F.2d at 257
(quoting Hobson, 737 F.2d at 29), 250 n.32 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 814 (1982)). The heightened pleading
standard in actions against government officials also serves to
shield pub lic officials from becoming unduly enmeshed in
protracted discovery. See id. at 257. None of the damage claims
can survive defendants' motion to dismiss.
Case Listing --- Proposition One ---- Peace Park