MARY HUDDLE, et. al.,

          v.                     Civil Action No. 88-3130
                                 Judge Joyce Hens Green


In accordance with the Memorandum Opinion issued this date, judgment is hereby entered in favor of defendants and against plaintiffs.


May 24, 1991

/s/ Joyce Hens Green
United States District Judge


MARY HUDDLE, et. al.,

          v.                     Civil Action No. 88-3130
                                 Judge Joyce Hens Green


Pro se plaintiffs Mary Huddle, Philip Joseph, Concepcion Picciotto, Sunrise S. Harmony, Scott Galindez, and William and Ellen Thomas, individually and as members of the "White House Anti--Nuclear Vigil" and "Peace Park Anti-Nuclear Vigil. have, for ten yearn, sought to maintain a symbolic "continuous presence" in Lafayette Park, Washington, D.C. Plaintiffs initiated this action against, inter alia, former President Reagan, the Office of Management and Budget ("OMB"), the Secretary of the Interior, numerous federal officials, the District of Columbia, and Michael Canfield, Captain of the District of Columbia Metropolitan Police Department ("MPD"), for injuries allegedly arising out of plaintiffs' communicative activities in Lafayette Park. 1/

1/ Plaintiffs have, at various times, filed motions and additional complaints seeking to add plaintiffs and defendants to the instant case. For example, on March 21, 1991, plaintiffs filed a motion for joinder seeking to join President Bush, the United States Park Police, Major Holmsburg, Lieutenant Clipper, Sergeant McNally, Sergeant Rule, and Officer Ferbee as defendants. In order to expedite resolution of the issues in this case, plaintiffs' motion to join defendants shall be granted. Similarly, On March 21, 1991, Karin Love Cartwright moved to intervene as of right. Although under Rule 24(a) of the Federal Rules of Civil Procedure Cartwright is not entitled to intervene as of right, the Court shall permit Cartwright to intervene pursuant to Rule 24(b); intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.

Finally, plaintiffs concede that the case is "moot as Hr. Reagan is no longer President.. Plaintiffs' Response to Federal Defendants' Reply to Plaintiffs' opposition to the Motion to Dismiss and to All of Plaintiffs' Other Submissions (plaintiffs Response In), at 2. Consequently, all claims against former President Reagan shall be dismissed. In any event, even though President Bush may be substituted as a party, pursuant to Rule 25 (d) (1) of the Federal Rules of Civil Procedure, a. a rule, "joinder of the President as a party defendant is generally unnecessary." Even if relief were warranted, complete relief can have been afforded against a subordinate government official. See Minnesota Chippewa Tribe v. Carlucci, 358 F. Supp. 973, 976 (D.C.C. 1973). Consequently, all claims against President Bush shall be dismissed.


Plaintiffs contend, inter alia, that defendants conspired to extinguish their constitutional and statutory rights; that prior and threatened enforcement of Department of Interior ("Interior") regulations inhibits the free flow of ideas and information in violation of the First Amendment: and that plaintiffs have been subjected to a pattern and practice of malicious harassment.

Further, plaintiffs aver that the Interior regulations have been selectively enforced against them because of their protest activities.

Federal defendants have since moved to dismiss the complaint, and defendant District of Columbia has filed a motion to dismiss and/or for summary judgment. 2/ While courts are certainly sensitive to individuals' exercise of their First Amendment rights, including those of plaintiffs, the Court concludes, after carefully

2/ Although federal defendants filed a motion to dismiss plaintiffs' case, the Court has considered matters out side the initial pleading, including plaintiffs' numerous exhibits and videotape recording.


scrutinizing the entire record, that plaintiffs are not entitled to the relief they seek.


Plaintiffs have attempted to maintain a continuous presence in front of the White House, along Pennsylvania Avenue, and in Lafayette Park to espouse their anti-nuclear views. Compelled by their religious and political convictions, plaintiffs have sought to urge the general public and, through their presence across the street from the President's residence, the President himself, to strive toward the elimination of nuclear weapons, which, they believe, will ultimately destroy all humankind. The message they hope to perpetuate is "Peace Through Understanding, "Peace Through Reason, and "Peace Through Love."

Over the course of their vigil, which commenced in 1981, plaintiffs and law enforcement officials have engaged in an ongoing conflict arising from plaintiffs' exercise of their First Amendment right. and defendants' enforcement of several Interior regulations that establish the time, place, and manner of First Amendment activity in Lafayette Park. 3/

3/ Although it is difficult to discern, plaintiffs appear to challenge here the enactment and enforcement of several federal regulations, in particular: (1) 36 C.F.R. § 7.96(g)(5)(vii) which provides, "[t]emporary structures may not be used outside designated camping are as for living accommodations activities such as sleeping, or making preparations to sleep . . . , or storing personal belongings, or making any fire, or doing any digging or earth breaking or carrying on cooking activities;" (2) 36 C.F.R. 7.96(1) which defines "camping." and prohibits camping outside "areas designated by the Superintendent, who may establish limitations of time allowed for camping in any public campground,. (3) 36 C.F.R. §§ 7.96(g)(5)(vii)(A), 7.96(g)(5)(viii), and 7.96 (g) (5) (ix) which provide that structures and sign. or placards are not permitted on the White House sidewalk, unless they are of a certain size, shape, and material, and "[n]o parcel, container, package, bundle or other property shall be placed or stored on the White House sidewalk;" and 36 C.F.R. § 7.96(g)(5)(x)(B)(2) which provides, inter alia, "[s]igns that are not being hand-carried and that are no larger than four (4) feet in length, four (4) feet in width and one-quarter (1/4) inch in thickness . . . may be used in Lafayette Park, provided that no individual may have more than two (2) such signs in the Park at any on. time, and provided further that such signs must be attended at all times."


It is undisputed that plaintiffs have been repeatedly warned, cited, arrested, tried, and sometimes convicted for violating these regulations. 4/

The courthouse is not an unfamiliar edifice to any of the plaintiffs. In addition to various criminal cases in which they have appeared as defendants, many of these plaintiffs have been involved in other civil litigation. In 1984, William Thomas, among others, sued Interior officials, challenging the constitutionality of several regulations that establish the time, place, and manner of First Amendment activity near the White House in Lafayette Park. 5/ Plaintiffs there also sought damages for injuries arising out of an alleged federal conspiracy to promulgate the Interior regulations for the purpose of infringing upon plaintiffs' First Amendment freedoms. After substantially narrowing the issues in, the case, in June 1986, Judge Oberdorfer referred the remaining claims to then- United States Magistrate Arthur Burnett, Sr. to preside over limited discovery. After Magistrate Burnett

4/ "Plaintiffs' motion to strike federal defendants' Exhibit 4 shall be granted Nevertheless, evidence of plaintiffs' various conviction. is available in published opinions of this Court.

5/ The regulations at issue in that case were 36 C.F.R. § 7.96(g)(5) and 7.96(i) (1987). See Thomas v. United States, 696 F. Supp. 702, 704 (D.D.C. 1988) ("Thomas II").


personally presided over the depositions -- of ten government officials, the federal defendants moved anew to dismiss the case or, in the alternative, for summary Judgment.

In 1987, while the summary judgment motion was pending, plaintiffs filed a second action against many of the same federal defendants as well as the News World Communications, which was conducting business as the Washington Times, the Reverend Sun Myung Moon, and others associated with the newspaper and with a political association known as Young Americans for Freedom. On February 23, 1988, Judge Oberdorfer dismissed all claims against the Times defendants and against all but three of the named nonfederal defendants and held that plaintiffs had failed, as a matter of law, to state a conspiracy claim. Thomas v. News World Communications., 681-F.-Supp. 55, 66-72 (D.D.C. 1988) ("Thomas I"). The remainder of the cane was then consolidated with Thomas II. Thomas 1, 681 F. Supp. at 74. On September 16, 1988, Judge Oberdorfer dismissed the entirety of the consolidated cases, upholding the Interior regulations at issue and finding that plaintiffs failed to state a cause of action for injuries arising out of an alleged federal conspiracy to promulgate and enforce the Interior regulations.

Judge Oberdorfer described plaintiffs, 1984 and 1987 claims against the federal defendant. as follows:

[Plaintiffs' damage] 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 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.

Thomas II, 696 F. Supp. at 704.

And with respect to plaintiffs' claims for injunctive and declaratory relief, Judge Oberdorfer Summarized:

Plaintiffs claim that the regulation codified at 36 C.F.R. § 7.96(g)(5)(X)(B), which prohibits the placement of unattended signs in Lafayette Park, place[es] arbitrary, capricious, and unwarranted restrictions on those who "wish[] to demonstrate. there. 1987 Complaint at ¶ 64. Plaintiffs imply that abusive and selective enforcement of this regulation, i.e. at ¶ 65, has resulted in an unconstitutional infringement of their First Amendment rights, id. at ¶ 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. § 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 regulation. constitute valid time, place, and manner restrictions in the exercise of First Amendment rights in Lafayette Park.

Thomas II, 696 F. Supp. at 705_---Plaintiffs subsequently moved for reconsideration, which motion was denied on November 22, 1988. Meanwhile, on October 27, 1988, plaintiffs had initiated the instant complaint and subsequently supplemented that complaint with several amended complaints, various clarifications, and errata. 6/


In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957)

6/ As indicated in this Court's Order of April 30, 1991, plaintiffs' latest "Complaint." dated March 21, 1991, did not supercede or supplant plaintiffs' earlier claims but rather supplemented the allegations. The Court has considered each allegation raised by plaintiffs in each filing.


The factual allegations of the complaint must be-presumed two and liberally construed in favor of plaintiff. Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C. Cir. 1984); 5A C. Wright & A. Miller, Federal Practice and Procedure, § 1357, p. 304 (1990). The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Summary Judgment, in contrast, is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there in a need for trial -- whether, In other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). In considering a motion for summary Judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).



Federal defendants advance several arguments in support of their motion to dismiss: 1) to the extent that plaintiffs seek damages for common law torte, those claims should be dismissed because plaintiffs have not sued the proper defendant, the United States, and plaintiff. have not exhausted their administrative remedies as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. I' 2671 et seq.; 2) to the extent plaintiffs pursue constitutional tort, conspiracy, and Statutory claims, plaintiffs have failed to plead such claims as to each defendant with the requisite specificity: 3) plaintiffs did not properly serve defendant; 7/ 4) plaintiffs are precluded from litigating most of their claims because the statutes of limitations ha. runs 5) the individual federal defendants are entitled-to immunity from suit, absolute in the case of the President, qualified a. to the other defendant government officials 6) the regulations at issue are valid time, place, and manner restrictions that have been adjudged to be constitutional by various course; and 7) -there is no selective enforcement or equal protection argument available to plaintiffs because federal regulations and statutes specifically permit certain activities and prohibit others.

I. Tort Claims

As a preliminary matter, it appears from plaintiffs' pleadings

7/ Although federal defendants contend that the Court backs personal jurisdiction over some of the individually sued defendants because they have not been properly served, on December 19, 1988, the Court specifically directed the Marshals Service to effectuate service of plaintiffs' second amended complaint on those defendants who, at that time, did not have the requisite notice of plaintiffs' lawsuit.


that while they claim that they have been subjected numerous torts, they are not alleging common law tort causes of action. As plaintiffs explain, "This action does not sound in tort . . . . The only reference to torts is that plaintiffs have suffered plenty of them as the result of defendants' alleged conspiracy to suppress the exercise and expression of their beliefs.. Plaintiffs' Response to Federal Defendants' Supplemental Motion to Dismiss ("Plaintiffs' Response II.), at 18.

In any event, even if plaintiffs had alleged common law tort violations, their claims would have failed. As a prerequisite for filing a civil tort action, the FTCA requires that claimants first file administrative claims with the agency from which they seek relief. 28 U.S.C. § 2675(a). Plaintiffs do not contend that they have filed the appropriate administrative claims.

Notwithstanding the exhaustion requirement, all tort claims against the OMB, the Secret Service, and the individual defendants sued in their official capacities must also be dismissed because amendments to the FTCA establish that, under the circumstances described here, none of the federal defendants can be sued for alleged common law tort violations. 8/ The statute provides in pertinent part:

"The remedy against the United States provided by sections 1346(b)-and 2672 of this title for injury or lose of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action

8/ The statute does not, however, apply to constitutional tort claims.


or proceeding for monetary damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject Batter against the employee the employee's estate in precluded without regard to when the act or omission occurred."

28 U.S.C. § 2679(b)(1). Upon certification by the Attorney General, or his designee, 9/ that the individual defendant was acting within the scope of his employment, the action is deemed one against the United States, and the United States must be substituted the sole defendant. 28 U.S.C. §2679(d). On February 10, 1989, John D. Bates, Chief of the Cavil Division, United States Attorney's Office for the District of Columbia, certified that the individual federal defendants named prior to that date were acting within the scope of their employment at the time of the incidents alleged in plaintiffs' various complaints.

2. Conspiracy Claims

The Supreme court held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392-94 (1971) that a cause of action for violations of a person's constitutional rights exist. against federal official. while acting in an official capacity. It in axiomatic, however, that the complaint against such individuals must allege specific deprivations of plaintiffs' rights, and include specific factual allegations as to each alleged deprivation.

9/ Pursuant to 28 C.F.R. § 15.3, the Attorney General has delegated to United States Attorneys the authority to certify whether the federal defendants have acted within the scope of their employment.


As the Court of Appeals for the District of Columbia Circuit explained the heightened pleading standard, "The heightened pleading standard will thus operate, in practice, much like Rule 9(b)'. requirement that 'the circumstances constituting fraud or mistake shall be stated tin the complaint] with particularity.' Fed.R.Civ.P. 9(b) (emphasis added). Because conclusory allegations of unconstitutional or otherwise illegal conduct will not withstand a public official's dispositive pretrial motion, and because plaintiffs cannot expect the court's assistance in obtaining the necessary factual support, plaintiffs bringing suit against public official. generally must put forward, in their complaints or other supporting materials, greater factual specificity and 'particularity' than is usually required." Martin v. Malhoyt, 830 F.2d 237, 257 (D.C. Cir.), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987). And as the Court of Appeal. further explained in the conspiracy setting, "[U]nsupported allegations, which fail to specify in detail the factual basis necessary to enable "defendants] intelligently to prepare their defense, will not suffice to sustain a clad. of governmental conspiracy to deprive [plaintiffs] of their constitutional rights." Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985), (quoting Ostrer v. Aronwald, 567 F.2d 551,_553 (2d Cir. 1977)). 10/

With respect to plaintiffs' 42 U.S.C. § 1985(3) claim,

10/ Plaintiffs had also raised conspiracy claims in the cases that were before Judge Oberdorfer, and that Court, too, found that plaintiffs' 42 U.S.C. §§ 1983, 1985(3), and 1986 conspiracy claims must be dismissed. See Thomas II, 696 F. Supp. at 704-05 ; Thomas I, 681 F. Supp. at 65-72. -


plaintiffs must allege and prove five elements: (1) a conspiracy and (2) an act in furtherance of the conspiracy ; (3) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (4) which conspiracy was motivated by some class-based, invidious, discriminatory animus; (5) whereby a person is injured or otherwise deprived of a right or privilege. See Hobson, 737 F.2d at 14.

Although plaintiffs proffer conclusory allegations. and describe numerous incidents in which they claim to have been wronged, they have failed to demonstrate the existence of a conspiracy. Our court of Appeals has suggested, "The essence of a civil conspiracy in participation in a common and unlawful plan whose goals are known to all members -- even if all parties are not privy to each individual act taken in furtherance of the scheme." Hobson, 737 F.2d at 55.

Plaintiffs, however, have failed to explain sufficiently how defendants have engaged in a common plan. Moreover, despite conclusory proffers, plaintiffs have also failed to demonstrate federal defendants' discriminatory animus. Rather, they have provided numerous example., and a videotape exhibit of the enforcement of the Interior regulation., entitled "The Ground War at Home,. and have asked the court to infer an improper motivation to extinguish plaintiffs' rights. There is nothing in the record


to suggest that the court should make such a leap. 11/

The videotape exhibit, which was filmed, produced, and edited solely by Plaintiffs, supports defendants' contention that plaintiff. have failed to provide the Court with evidence of a conspiracy. The tape is a jumble of passersby, police, plaintiffs, and presumably demonstrators for the war in the Middle East and against the war in the Middle East Often, it is difficult to discern what transpired, the sequence of events, and the actors because many portions of the tape were filmed at night Judging from the time markers, the tape does not proceed chronologically. Although the events recorded presumably occurred between January 1991 and March 1991, the tape proceeds from morning to night, night to morning, or one day to a previous day Consequently, although plaintiffs may have documented what were, at beat, isolated instances of seeming misconduct, plaintiffs do not show, and the Court cannot discern, what prompted the defendants' response In fact, at many points in the tape, plaintiff. deliberately and persistently-goaded the defendants and urged them to recite chapter and verse of the relevant regulations, which, of course, defendants are not obligated to do.

11/ With respect to plaintiffs' § 1986 claim, the language of the statute establishes unambiguously that a colorable clad. under § 1985 is a prerequisite to stating an adequate elate for neglect in1986. specifically preventing the commission of a wrong under 42 U.S.C. § 1986 specifically, § 1986 provider a right of action for damages against a person who "having knowledge that any of the wrong. conspired to be done, and mentioned in section 1985 of this Title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed " 42 U.S.C. § 1986. Because plaintiffs have failed to state a claim under § 1985, plaintiffs' § 1986 claim must also be dismissed.


Many times, the defendants responded courteously, referred to plaintiffs by name or "Sir" to get their attention, cited the regulations, provided plaintiffs with copies of the rules, and moved on. At several points, the Park Police are shown gently rousing plaintiffs and ensuring that they were not ill. In fact, in one recorded scene, defendant. are shown taking the pulse of a plaintiff who did not appear to be moving; after assuring themselves that the pulse of the individual plaintiff we. normal, the defendants roused plaintiff from what appeared to be his slumber. Under these circumstances, and looking at the pleadings and plaintiffs' own exhibits in a most charitable light, plaintiffs have failed to provide the Court with evidence that defendants have invidiously conspired to extinguish their First Amendment rights.

Similarly, plaintiffs fall to plead their conspiracy claims under § 1983 with sufficient specificity. Again, although replete with references to their numerous confrontation. with defendants, plaintiffs do not state facts that suggest there was an invidious conspiracy. Moreover, as Judge Oberdorfer has previously found, " [A]n action for conspiracy to violate § 1983 depends, as does a simple § 1983 action, upon a showing that the acts of which plaintiffs complain were taken 'under color of state law.'" Thomas I, 681 F. Supp. at 67. Plaintiffs' allegation that defendants conspired to promulgate regulations that infringe upon plaintiffs' First Amendment rights describes a conspiracy that could only have


proceeded "under color of. federal law. As Judge Oberdorfer correctly concluded, "Section 1983 provides no relief against persons acting under color of federal law." Thomas 1, 681 F. Supp. at 68.

3. Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment Claims

Plaintiffs' Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment claims are equally deficient under the heightened pleading standard. As a preliminary matter, plaintiffs cannot argue, as they do, that defendants subjected plaintiffs to numerous torts in violation of the Fourteenth Amendment, for the Fourteenth Amendment is applicable only to the states, not to the District of Columbia. Moreover, plaintiffs have failed to articulate a feasible nexus between their constitutional claims and specific facts relating to each federal defendant. Consequently, these claim. must be rejected. 12/

4. Equal Protection/Selective Enforcement Claim

Plaintiffs further complain that the Interior regulations have been discriminatorily enforced, for while the regulations have been applied to plaintiffs, they have not been applied with equal vigor to other groups, in particular, the Presidential Inauguration Committee (the "Committee"). To prevail on a clad. of selective prosecution, plaintiffs must show both that they were singled out for prosecution among others similarly situated and that the decision to prosecute was improperly motivated. See United States v. Mangieri, 694 F. 2d 1270, 1273 (D.C. Cir. 1982).

12/ Plaintiffs' selective enforcement claim, presumably brought under the Fifth Amendment, and plaintiffs' First Amendment claim are discussed below.


There is ample authority, however, to support the activities that were conducted by the Committee. In fact, 36 U.S.C. § 724 specifically authorizes the Secretary of the Interior to grant permits for the use of federal grounds during-the inaugural period. Moreover, 16 U.S.C. § 3 commands the Secretary of the Interior to promulgate rules and regulations "as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service."

Here, the American Bicentennial Presidential Inaugural Committee applied for, and was granted, a permit for various inaugural activities. The letter granting the permit and the permit itself 13/ not only provide for the construction of reviewing stands and other structures that would otherwise be prohibited by 36 C.F.R. § 7.96 but also impose significant restrictions on the permittee: use of Lafayette Park and the White House sidewalk we. granted only for the period from November 20, 1988 through February 17, 1989; the Committee was required to obtain public and employee liability insurance; the Committee had to agree to "[p]ay the United States the full value for all damages. to the lance or other property of the United States caused by him or by 0a employees, contractors or employees of the contractors;" 14/ and the Committee

13/ See Letter from James J. McDaniel, Associate Regional Director, White House Liason: to Stephen H. Studdert, Executive Director, The American Bicentennial Presidential Inaugurals dated November 25, 1988; attached as Exhibit 10 to Federal Defendants' Motion to Dismiss ("Federal Defendants' Motion") ("Exhibit 10").

14/ Exhibit 10, at 2.


had to provide a bond or deposit for the permit in the amount of $50,000.00. It in undisputed that the Committee fulfilled each and every condition-

The Court of Appeals for this Circuit has examined and rejected a claim comparable to plaintiffs' equal protection argument raised here. In United States v. Grace, 778 F.2d 818 (D.C. Cir. 1985), cert. denied, 479 U.S. 844 (1986), the defendant was prosecuted for violating the "center zone" provision of the White House sidewalk regulation by holding a sign while standing in the middle of the sidewalk. In challenging her conviction, Grace argued that her equal protection rights had been violated because in constructing grandstands for the 1985 inaugural, the Committee had placed the presidential seal, a sign, on the center of the grandstands, and, thus, in the center zone of the sidewalk. Because neither the Committee nor its members were prosecuted, Grace contended a violation of equal protection. The court of Appeals flatly rejected the argument and found the relevant inquiry to be "whether the Park Service has forbidden appellant's conduct based on the content of her sign. Id. at 822.

Plaintiffs have failed to show that the difference in treatment between plaintiffs and the Inaugural Committee is based on the content of plaintiffs' messages. Moreover, plaintiffs have neither applied for a permit nor consented to the types of restrictions imposed on the Committee and provided for by regulation and statute. The conduct of the inaugural Committee is, therefore, entirely separate and distinct from the continuous vigil


maintained by plaintiffs.

5. Pattern and Practice Claim

Finally, plaintiffs allege that federal defendants have engaged in a pattern and practice of harassment in violation of the First Amendment. Again, plaintiffs' argument must be rejected.

A. a preliminary matter, plaintiffs have failed to demonstrate that the individual defendants subjected plaintiffs to a pattern and practice of harassment in violation of the Constitution. As apparent from the videotape, which selectively documents plaintiffs' and defendants activities since January 1991, defendant officers are depicted enforcing the Interior regulations and in many instances, plaintiffs are shown resisting arrest. Plaintiffs' continuous use of Lafayette Park, coupled with the presence of sleeping bags and other personal items, all documented on videotape, support, rather than detract from, defendants' position that plaintiffs were not complying with the regulation that prohibits camping. Moreover, defendants do not dispute that there was a substantial increase in activities, by plaintiffs and other demonstrators, in Lafayette Park at the onset of the war with Iraq and a corresponding increase in Park Police presence and enforcement of the Interior regulations. There is, however, no factual support for plaintiff.' contention that defendants violated the law by enforcing the Interior regulation. more stringently during this period, thereby destroying, what plaintiffs term, the status quo.

Even if plaintiffs had pointed to scattered instances of


misconduct, 15/ it is clear that plaintiffs are not entitled to relief. First, the federal defendant officials would be entitled to a defense of qualified immunity Under Harlow v Fitzgerald, 457 U.S. 800, 818 (1982), "[G]overnment official. performing discretionary functions, generally 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 ." 16/

This is not a case in which the federal defendant. were acting pursuant to patently unconstitutional regulation. In fact, insofar an the regulation proscribes camping, the Supreme Court has already held in Clark v CCNV, 468 U,S, 288 (1984), that that regulation is constitutional Similarly, insofar a. plaintiffs challenge provisions of the regulation relating to demonstrations on the White House sidewalk, the Court of Appeals for this Circuit has, on several occasions, upheld the regulations as

15/ The entire tape must be viewed to appreciate that, as expressed above, the recorded events do not proceed chronologically; and because plaintiffs are often depicted goading defendant officers, it is difficult to discern, what, if anything, prompted the officers' response.

16/ Plaintiffs have moved to compel discovery of certain documents and photographs in the possession of defendants, or the possession of agencies, officer., or employees of the United States government Both the Supreme Court and our Court of Appeals, however, have stated that when a defense of immunity has been raised, discovery should not be permitted until the threshold immunity question is resolved See Harlow, 457 U.S. 8 at 818 ("Until this threshold immunity question is resolved, discovery should not be allowed ."); Fludd v United States Secret Service, 771 F 2d 549, 554 (D C Cir 1985) Accordingly, plaintiffs' motion to compel discovery is denied, and the federal defendants' motion for a protective order in granted.


constitutional. See, e.g., Juluke v. Hodel, 811 F.2d 1553, 1559-62 (D.C. Cir. 1987); Grace, 778 F.2d at 820-22: White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1534-41 (D.C. Cir. 1984). The sign attendance requirement was also upheld against a constitutional attack. See United States v. Musser, 873 F.2d 1513, 1516-18 (D.C. Cir.), reh. denied, 883 F.2d 84 (D.C. Cir.), cert. denied, 110 S. Ct. 518 (1989). And the constitutionality of 36 C.F.R. § 7.96(g)(5)(x) in Thomas II were found to be clearly valid for reasons with which this Court agrees. See Thomas II, 696 F. Supp. at 705-12.

In any event, "[o]ne instance, however egregious, does not a pattern or practice make.. Martin, 830 F.2d at 255. As the Court of Appeals found in Martin, "[W]e find no factual support for plaintiffs' claims that a pattern of arrests without cause pervades U.S. Park Police practice. Each plaintiff points to a single instance -- his or her own arrest -- as illustrative of the alleged unlawful pattern; beyond these personal encounters, plaintiffs tender only 'conclusory allegations.' Id. Here, too, plaintiffs point to their own arrests as evidence of an unlawful pattern and practice. Even if the arrests did not result in conviction, there is no factua1 support for plaintiffs' conclusory allegations. that defendants knowingly violated the law, or, for that matter, violated the law at all. There is nothing to reflect that defendants acted other than reasonably in pursuing what they


believed constituted regulatory violations. 17/


The District of Columbia defendants (.D.C. defendants) also contend that the instant action should be dismissed because plaintiffs' claims against D.C. defendant. are barred by the status. or limitations and because there is no allegation of a custom or policy sufficient to support a civil rights claim against the District of Columbia.

The incidents that allegedly give rise to plaintiffs' claims against the individual D.C. defendant. concern the actions of Captain Canfield, who arrested William Thomas on March 1l. 1983 for setting fire to a structure in the middle of the sidewalk and an alleged assault by officer Minzak on March 15, 1983/ Because these actions occurred eight years ago, and the statute of limitations for 42 U.S.C. § 1983 actions is three years, 18/ plaintiffs' § 1983 claims against Captain Canfield and Officer Minzak are time-barred." 19/

17/ In any event, if it is appropriate plaintiffs are-surely-free to challenge their arrests in the proceedings in which they are defendants.

18/ See Owens v. Okure, 109 S. Ct. 573, 582 (1989).

19/ Nor can plaintiffs contend that the claims were tolled during the pendency of their previous litigation, which Judge Oberdorfer dismissed without prejudice. As our Court of Appeals held in Dupree v. Jefferson, 666 F.2d 606, 611 (D.C. Cir. 1981), "We therefore hold . . that under District of Columbia law the pendency of an action involuntarily dismissed without prejudice does not operate to toll the running of the statute of imitations."

In a further attempt to preserve their claims from a statute of limitations defense, plaintiffs complain that defendants erected a fence on January 20, 1989 and that "[t]here is a notable similarity between the events of January 20, 1989 and March 11, 1983." Plaintiffs' Response to the Reply of District of Columbia to Submissions of Plaintiffs ("Plaintiffs' Response III.), at 1. Plaintiffs have failed to show, however, how the construction of the fence was unlawful or how defendants impermissibly "curtail[ed] Constitutionally protected activity. Plaintiffs' Response III, at 1.


In any event, plaintiffs' claim against Captain Canfield had been developed before then- United States Magistrate Burnett who found that Captain Canfield had "acted reasonably in first approaching the plaintiff and subsequently arresting him for arson following his conduct in 'torching' the structure." Memorandum Opinion, attached as Exhibit A to Motion of District of Columbia to Dismiss and/or for Summary Judgment, at 15. The Court seen no reason to reject the findings of that Magistrate

Plaintiffs' civil rights claims against the District of Columbia also cannot survive. As a threshold matter, a court, in determining whether a claim is cognizable under 42 U.S.C. § 1983, must decide: (1) whether the conduct complained of was committed by a person acting under color of state laws and (2) whether the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Eg. 42 U.S.C. § 1983. Complaints against a municipality that contain only the two elements enumerated in the statute, however, do not adequately state a claim under 42 U.S.C. 5 1983. a municipality cannot be held vicariously liable under a theory of respondent superior for the constitutional torte of individual officers. As the Supreme Court explained in Monell v. Department of Social Services,


"Local governing bodies can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement. ordinance. regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S. 658, 690-94 (1978) (emphasis added). "To succeed, a plaintiff must show a course deliberately pursued by the city, as opposed to an action taken unilaterally by a non-policymaking municipal employee, and an affirmative link between the [city's] policy and the particular constitutional violation alleged." Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986) (citations omitted).

In the instant action, plaintiffs failed both to show conduct that deprived defendants wrongfully of their rights and to allege custom or policy of the District of Columbia. Plaintiffs simply proffer bald assertions of municipal liability. As the Court of Appeals for the District of Columbia Circuit explained the pleading requirements, "The mere assertion that the police officer acting fully within the scope of his employment and pursuant to the policies of defendant . . . is not specific enough to withstand dismissal. Petitioner has pointed to no rule, procedure or policy of the District which would require or even permit the alleged unconstitutional actions." Miller v. Barry, 698 F.2d 1259, 1261 (D.C. Cir. 1983) (emphasis in original) (citations. omitted). Under the standards set forth in Miller, plaintiffs' claims against the


District of Columbia must be dismissed. 20/


For the reasons expressed above, it is hereby

ORDERED that federal defendants' motion to dismiss is granted; it is

FURTHER ORDERED that the District of Columbia's motion to dismiss and/or for summary judgment is granted.

IT IS S0 ORDERED. May 24, 1991

/s/ Joyce Hens Green
United States District Judge

20/ Because plaintiffs have failed to show cause for imposing sanctions against defendants, their motions for sanctions are denied. All other outstanding motions and arguments have been considered but are also denied as meritless.