WILLIAM THOMAS,                        

     v.                            Civil Action No. 97-0712 (TFH)



Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), defendants moves to dismiss this matter in part on the grounds that this Court lacks jurisdiction over defendant Stanton and that the complaint fails to state a claim upon which relief can be granted against him.

In support of this motion, the Court is respectfully referred to the supporting memorandum of points and authorities. A proposed order reflecting the relief sought by this motion is also submitted.

Respectfully submitted,

(by S.M.L.)
MARY LOU LEARY, DC Bar #337485
United States Attorney

(by S.M.L.)
JOHN D. BATES, DC Bar # 934927
Assistant United States Attorney

(signed) STACY M. LUDWIG
STACY M. LUDWIG, DC Bar # 445719
Assistant United States Attorney


WILLIAM THOMAS,                        

     v.                            Civil Action No. 97-0712 (TFH)



I. Preliminary Statement

On April 10, 1997, plaintiff initiated this action against the United States and Secret Service Agent Christian Stanton raising both constitutional and co mm on law tort claims. His claims arise out of a series of incidents that occurred in Lafayette Park on the evening of April 6, 1996, when plaintiff disobeyed Officer Stanton's orders, created a disturbance and ultimately engaged in a fight with Officer Stanton. As a result of his actions, plaintiff was arrested for disorderly conduct and assaulting a police officer.

Based on these events, plaintiff claims that defendant Stanton's actions violated his First and Fourth Amendment rights and seeks damages against him in his individual capacity for an unspecified amount. Id.¶¶ , 16-22. He also claims that the actions of defendant Stanton and other Secret Service agents constituted assault and battery, false arrest, false imprisonment, and negligence and that accordingly, he is entitled to damages (again for an unspecified amount) under the Federal Tort Claims Act ("FTCA"). Id. ¶¶, 13-15.

As the following discussion demonstrates, plaintiff's claims against defendant Stanton in his individual capacity should be dismissed. Plaintiff has failed to properly serve defendant Stanton, and moreover, defendant Stanton is entitled to qualified immunity for all of the claims asserted against him. [1]

II. Factual Background [2]

On April 6, 1996, at about 9:30 p.m. plaintiff, while standing in Lafayette Park on the north side of Pennsylvania Avenue, shouted the preamble to the Declaration of Independence so that passersby on both sides of Pennsylvania Avenue could hear him. See Complaint, ¶ 6. Secret Service Officer Christian Stanton stood on the opposite side of Pennsylvania Avenue from the plaintiff and shouted to him to quiet down. Id. Nevertheless, plaintiff failed to obey Officer Stanton's order. Therefore, in an effort to address the situation, Officer Stanton approached the plaintiff and asked him once again to be quiet. Id, At the same time, two other uniformed officers approached the scene and spoke with the plaintiff and Officer Stanton.

Plaintiff, in essence, ignored the officers, and soon after they left him, he again began yelling loudly to a group of people

[1 Defendants are filing simultaneously herewith an answer to the complaint on behalf of the United States relating to the claims under the FTCA.

[2 This Section is based on the allegations Set forth in the complaint. Defendants disagree with plaintiff's version of the facts; however, for purposes of the instant motion to dismiss only, defendants assume the truthfulness of the allegations set forth in the complaint.


on the other side of Pennsylvania Avenue, engaging them in a shouting match about free speech. Id. ¶ 7. Officer Stanton then approached the plaintiff again, and spoke more firmly allegedly telling him to ''shut up.'' Id. An imbroglio ensued during which Officer Stanton ordered the plaintiff to stop resisting. Id. Meanwhile, other officers approached the scene; they subdued the plaintiff and handcuffed him. Id. ¶ 8. Plaintiff was then transported to the Metropolitan Police Department police station in the Second District and charged with assault on a police officer and disorderly conduct. Id. ¶ 9. He was then taken to the Central Lockup at the District of Columbia Superior Court. Id., ¶ 11. Thereafter, he appeared before the court on the felony charge of assaulting an officer which was dismissed. Id. The disorderly conduct charge appears not to have been addressed before the plaintiff was permitted to leave. Id.

III. Argument

1. This Court Lacks Personal Jurisdiction Over Defendant Stanton In His Individual Capacity Because Plaintiff Has Failed To Effect Proper Service On Him.

This Court is without personal jurisdiction o defendant Stanton in his individual capacity in the absence of proper Service and cannot exercise jurisdiction. It is well established that, in an action against a federal employee in an individual capacity, the individually sued defendant must be served with process in accordance with rules applicable to individual


defendants. See Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978); Navy, Marshall & Gordon v. U.S. International Development Corporation Agency, 557 F. Supp. 484, 489 (D.D.C. 1983); Delgado v. Bureau of Prisons, 727 F. Supp. 24 (D.D.C. 1989). Rule 4 requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left "at his dwelling house or usual place of abode with some person of suitable age and discretion" who resides there.

Service on the Attorney General of the United States and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to official capacity suits, "does not obviate the requirement of personal service . . . where the action is in substance against a federal official in his individual capacity." See Lawrence, 79 F.R.D. at 670; Delgado, 727 F. Supp. at 27. Indeed, the Court of Appeals has cautioned that "Courts in this circuit must examine challenges to personal jurisdiction and venue carefully to guard against the danger that a plaintiff might manufacture venue in the District of Columbia." See Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993).

Where, as here, plaintiff seeks relief against a federal employee in an individual capacity, the Court must acquire personal jurisdiction in order to enter a binding judgment. See Reuber v. United States, 750 F.2d 1039, 1049 (D.C. Cir. 1984); Griffith v. Nixon, 518 F.2d 1195 (2d Cir.), cert. denied, 423 U.S. 995 (1975), and the general rule is that a plaintiff has the


burden of establishing personal jurisdiction. Reuber, supra at 1052. Because the record in this action does not establish proper personal Service upon defendant Stanton in his individual capacity, any claim against him in such capacity is subject to dismissal. See Exhibit 1.

B. The Claims Against Defendant Stanton Should Be Dismissed Because He Is Entitled To Qualified Immunity


The claims against Officer Stanton in his individual capacity should must be dismissed because he is entitled to official immunity. Federal officials enjoy a qualified immunity from constitutional and statutory claims. Cleavinger v. Saxner, 474 U.S. 193, 206 (1985); Procunier v. Navarette, 434 U.S. 555, 561 (1978). The framework for application of qualified immunity to Such claims is set out in Harlow v. Eitzgerald, 457 U.S. 800 (1982). In that case, the Supreme Court confirmed that government officials 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. Id. at 818; see also Hunter v. District of Columbia, 943 F.2d 69, 75 (D.C. Cir. 1991). Moreover, under Harlow, this determination requires an objective, not Subjective, analysis. See McSurely v. McClellan, 697 F.2d 309, 316 (D.C. Cir. 1982), cert denied, 474 U.S. 1005 (1985). Harlow thus places Squarely on the plaintiff the burden of showing a ''prima facie case of defendants' knowledge of impropriety, actual or constructive.'' See Krohn v. United States,


742 F.2d 24, 31-32 (1st Cir. 1984); Davis v. Scherer, 468 U.S. 183, 191 (1984). Furthermore, as the Supreme Court has held,


The paramount point to keep in mind in analyzing plaintiff 's claims, therefore, is that neither the Court nor the plaintiff can engage in an inquiry into the state of mind of a defendant in the "threshold" resolution of qualified immunity claims. Harlow, 457 U.S. at 818. Subjective inquiries are legally irrelevant.

The only inquiry of any import is whether the defendant's alleged actions violated clearly established law or were objectively reasonable. See Brogedale v. Barry, 926 F.2d 1184, 1189 (D.C. Cir. 1991).

As to the "clearly established" inquiry, defendants need not demonstrate that ''the law was established in [their] favor at the time [they] acted." Rather, "[i]t is only necessary for [defendants] to show that the law was unsettled . . . not . . . that a Supreme Court opinion had specifically approved their actions." See Zweibon v. Mitchell, 720 F.2d 162, 173-74 n.19 (D.C. Cir. 1983), cert. denied, 469 U.S. 880 (1984), rein. denied,

[3 A defendant's right is to ''immunity from suit'' not a ''defense to liability.'' Id.; see also Cleavinger v. Saxner, supra, 474 U.S. at 207-08.


469 U.S. 1068 (1984); accord Brogsdale v. Barry, 926 F.2d at 1188-1192.

Furthermore, as the Supreme Court and the Court of Appeals have explained,

See Anderson v. Creighton, 107 S. Ct. 3034, 3038 (1987); accord Hunter v. District of Columbia, 943 F.2d at 75-78; Brogsdale v. Barry, 926 F.2d at 1189; Martin v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987). Thus, the Supreme Court held in Anderson, that even though plaintiff 's Fourth Amendment rights were violated in that case, the defendant officers were entitled to qualified immunity from suit individually because they acted reasonably. [4]

[4 The Court of Appeals has recently adopted a heightened ''clear and convincing'' evidence standard applicable at the summary judgment Stage to resolve the issue of immunity in motive-based Bivens actions. See Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) Plaintiff's claims against individual defendant Stanton, however, do not appear to grounded in Stanton's motives.


In this case, defendant Stanton is entitled to immunity from all claims asserted against him in his individual capacity. Officer Stanton neither violated any clearly established First or Fourth Amendment right nor acted unreasonably in regard to the matters about which plaintiff complains. Indeed, review of the complaint and applicable law reveals no violation, constitutional or otherwise.

1. First Amendment Claim

In essence, plaintiff appears to be claiming that his First Amendment rights were violated because he was not allowed to express his views to his satisfaction. He appears to believe that the First Amendment allows him to engage in any type of disruptive conduct with impunity. To the extent that plaintiff believes that he has the right under the First Amendment to engage in whatever kind of speech or expressive conduct whenever and wherever he wants in the now closed portion of Pennsylvania Avenue, he is mistaken. There is no clearly established right to do so. In fact, the contrary is true. In particular, the Supreme Court made clear in Heffron v. International Society for Krishna Consciousness. Inc., 452 U.S. 640, 647 (1981), that the right to express ideas is not wholly unfettered. Thus, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be


desired." Id. It is well settled that ''[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free Speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Cornelius v. NAACP Legal Defense and Educational Fund Inc., 473 U.S. 788, 799-800 (1985).]

Consequently, the government may in appropriate circumstances place reasonable restrictions on the time, place or manner of protected speech, so long as ample alternative means of communication are left open. See e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984); Heffron, 452 U.S. at 647-48; CCNV v. Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989). In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1983), a case which involved an unsuccessful challenge to the National Park Service ' regulation banning camping in the National Parks except in campgrounds Specifically designated for such purpose, [5] the Supreme Court set out the test of a regulation that impacts speech in a traditional public forum such as Lafayette Park:]

[5 In Clark, the plaintiff had sought to conduct a wintertime demonstration in Lafayette Park and the Mall to demonstrate the plight of the homeless; as part of the demonstration, plaintiff sought permission for the demonstrators to sleep in tents erected in these areas as a symbol of homelessness. Id., 468 U.S. at 29192 .


Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

Clark, 468 U.S. at 293-294 (citations omitted). The traditional three-part test set out in Clark has been consistently used and reaffirmed by later decisions of the Supreme Court. See, e.g., Ward v. Rock Against Racism, 491 U.S. at 791.

The statute at issue here, the D.C. Disorderly Conduct Statues [6] easily satisfies Clark's three-part test for determining

[6 It is unnecessary to engage in an analysis of the statute prohibiting assault on an officer under the Clark test because it is obvious that this statute has no First Amendment implications in the context of this case. Title 18 U.S.C. § 111 provides, inter alia:

§ 111. Assaulting, resisting, or impeding certain officers or employees

(a) In general.--Whoever

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;
* * *
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned nor more than three years, or both.]


the constitutionality of time, place, or manner regulations. This Statute provides that:

Whoever, with intent to provoke a breach of the peace, or under circumstances Such that a breach of the peace may be occasioned thereby: (1) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregates with others on a public street and refuses to move on when ordered by the police; (3) shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interferes with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of Such person's pocketbook, or handbag; or (5) causes a disturbance in any street car, railroad car, omnibus, or other public conveyance, by running through it, climbing through windows or upon the seats, or otherwise annoying passengers or employees, shall be fined not more than $250 or imprisoned not more than 90 days, or both.

See D.C. Code § 22-1121.

This statute clearly does not regulate speech based upon its content or message; rather, it imposes impartial rules that apply to everyone. It plainly sets forth the types of behavior which are prohibited; it does not proscribe any particular type of speech. Plaintiff does not allege that the statute has been applied inconsistently or that he has been singled out for prosecution because of his Specific message. See Clark, 468 U.S. at 288. In short, the statute is content neutral.

The Statute is also ''narrowly tailored to serve a significant government interest.'' In speaking on this prong of the test, the Supreme Court has stated, :"[t]he requirement of


narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." See Ward, 491 U.S. at 798 (numerous citations omitted). The purpose of the D.C. Disorderly Conduct Statute is to maintain public order. In discussing the Disorderly Conduct Statute, the District of Columbia Court of Appeals stated that ''[i]t does no more than give the police the right, within reasonable limitations, to keep the public sidewalks free of unnecessary obstructions and prevent groups from congregating in such a way that a breach of the peace may result." See Feeley v. District of Columbia, 220 A.2d 325, 328 (D.C. 1966)(citation omitted), vacated on other grounds, 387 F.2d 216 (D.C. Cir. 1967).

It is beyond cavil that preserving public order is a significant government interest. In this regard, the Supreme Court has stated:


See Cox v. State Of Louisiana, 379 U.S. 536, 554-55 (1965). The Court of Appeals for this Circuit has also recognized that there is a state interest ''in protecting the sensibilities of passers-by against shock, [which] does not depend on a showing of any tendency to result in violence." See Von Sleichter v. United


States, 472 F.2d 1244, 1246-47 (D.C. Cir. 1972), cert denied, 409 U.S. 1063 (1972), citing, Street v. New York, 394 U.S. 576 (1960). Similarly, the Supreme Court and this Circuit have found that the government ''has a substantial interest in protecting it citizens from unwelcome noise." See Ward, 491 U.S. at 795 (l989)(numerous citations omitted); United States of America v. Jane Doe, 968 F.2d 86, 89 (D.C. Cir. l992)(''the government may justifiably impose some sound volume restriction upon persons in all parks including Lafayette."). Thus, it is well recognized that preserving the public order is a substantial government interest.

The Statute also satisfies the third prong of the Clark test, in that it leaves open ample alternative channels for communication. It is undisputed that plaintiff and others may seek to communicate their messages in various ways. There is no question that plaintiff and other may continue to speak out and express their views So long as they do not intentionally provoke a breach of the peace. As this Circuit has concluded, when upholding the Park Service 's regulation concerning signs and parcels on the Sidewalk in front of the White House, those Seeking to demonstrate in the area may still ''engage in a rich variety of expressive activities: they may picket, march, hand out leaflets, carry signs, sing, shout, chant, perform dramatic presentations, solicit signatures for petitions, and appeal to passersby." White House Vigil, 746 F.2d at 1528. The availability of such alternative channels of communication amply


satisfy First Amendment concerns with respect to time, place, and manner limitations. Id.

In sum, no First Amendment violation has occurred in this case; thus, the First Amendment claims against defendant Stanton should be dismissed.

Memorandum Continued