Thomas v US, CA 84-3552

Published at 696 F.Supp. 702-713 ("Thomas I ")

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAM THOMAS, et. al.,         )                  
                   Plaintiffs    )             
                                 )                
        v.                       ) Civil Action No. 84-3552-LFO   
                                 ) 
THE UNITED STATES OF AMERICA,    )
                     Defendants. )

MEMORANDUM

Pro se plaintiffs William Thomas, Ellen Thomas, Concepcion Picciotto, Robert Dorrough, and others, individually and as organized, in various combinations, into the "White House Antinuclear Vigil" and the "Peace Park AntiNuclear Vigil" sue President Reagan, the Secretary of the Interior, and numerous Interior and park Police officials for injuries allegedly arising out of plaintiffs' communicative activities in Lafayette Park, Washington, D.C.

In 1984, plaintiffs filed suit against Department of the Interior officials challenging the constitutionality of several regulations regulating the time, place, and manner of First Amendment activity near the White House and in Lafayette Park. Plaintiffs also sought damages for injuries arising out of an alleged federal conspiracy to promulgate those regulations for the purpose of infringing plaintiffs'

First Amendment freedoms. In 1987, plaintiffs filed a second action against many of the same federal defendants together with News World Communications, doing business as the Washington Times, the Reverend Sun Myung Moon, and others associated with the newspaper and with a political association known as the Young Americans for Freedom. The 1987 complaint reiterated the constitutional challenges launched against the regulations and against federal officials in 1984. At the same time, plaintiffs broadened their constitutional tort allegations to embrace the nonfederal defendants, on a theory that the Washington Times had engaged in a campaign to libel plaintiffs and to discredit and, eventually, to suppress their expressive activity.

An Order issued on February 23, 1988, dismissed all counts of the 1987 complaint against all but three of the named nonfederal defendants, Because the reasoning of the February 23 Order applies with equal force to plaintiffs' claims against these three defendants as to the claims against the Times defendants, those claims must also be dismissed for failure to state a claim upon which relief can be granted.

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

dismiss or for summary judgment. For the reasons stated in this Memorandum, an accompanying Order grants that motion and dismisses both complaints without prejudice.

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. 6 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. 6 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

this litigation, the regulations proscribe "camping" in Lafayette Park. Cfr 36 C.F.R. 88 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'

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

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 public officials from becoming unduly enmeshed in protracted discovery. See id. at 257. None of the damage claims can survive defendants' motion to dismiss.

III.

Plaintiffs' claim for injunctive and declaratory relief raises closer questions. Plaintiffs claim that the regulation codified at 36 C.F.R. Sec. 7.96(g)(5)(x)(B), which prohibits the placement of unattended signs in Lafayette Park, "plac[es] arbitrary, capricious, and unwarranted restrictions" on those who "wish[] to demonstrate" there. 1987 Complaint at para. 64. Plaintiffs imply that abusive and selective enforcement of this regulation, id. at 19 65, has resulted in an unconstitutional infringement of their First Amendment rights, id. at para. 107. Similarly, plaintiffs cite numerous arrests by Park Police officers for violations of the "camping" and "storage of property" regulations, codified at 36 C.F.R. Sec. 7.96(i), to support a general allegation that these regulations are being enforced in a manner that violates the First Amendment. It is beyond question that

all three regulations constitute valid time, place, and manner restrictions on the exercise of First Amendment rights in Lafayette Park. The constitutionality of the "camping" regulations has been explicitly upheld by the Supreme Court. See Clark v. Community for Creative Non-Violence, 468 U.S· 288 (1984) ("CCNV"). Plaintiffs acknowledge the Supreme Court's ruling on this question. See Plaintiffs [sic] Opposition to Federal Defendants' Motion to Dismiss or for Summary Judgment (hereinafter Plaintiffs' opposition [2]) at 26 n.10.

The challenged three-foot sign attendance requirement, codified at 36 C.F.R. section .96(g)(5)(x)(B)(2), was upheld against constitutional challenge in this Court in litigation brought by several of these same plaintiffs in United States v. Musser, Cr. No. 87-157 (D.D,C. June 17, 1987) (Richey, J.) See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and a Temporary Restraining Order at 4. Plaintiffs advance no argument compelling a contrary ruling in this action. It is important to note, in this regard, that the CCNV Court made it clear that the judiciary is not to substitute its own judgment for that of the Department of the Interior by evaluating the wisdom and necessity of protective parkland regulation such as the unattended structure" proscription plaintiffs now challenge. CCNV, 468 U.S. at 299.

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