WILLIAM THOMAS,                        FILED JAN 9 - 1998 
          Plaintiff                    Clerk, U.S.  District Court
                                           District of Columbia
                                         Civil Action No. 97-0712 (TFH)


Pending before the Court is defendant' motion to dismiss plaintiff's claims against defendant Stanton in his personal capacity.[1] Also pending is defendants' motion to stay the requirements of Local Rule 206. After considering the submissions of each party, the Court will grant both motions.

I Factual Background

Plaintiff alleges that, between 9:00 and 9:30 on April 6, 1996, he was standing in

LaFayette Park, on the north side of Pennsylvania Avenue, across from the White House in Washington, D.C. Plaintiff states that he was engaged in protest activity, plaintiff admits that he was speaking with a raised voice, such that persons on both the north and south sides of Pennsylvania Avenue could clearly hear his messages.

Defendant Stanton, an officer with the United States Secret Service, allegedly asked

[1 Because the motion before the Court is one to dismiss under Federal Rule of Civil Procedure 12, the Court must consider only those facts pled by plaintiff in his Complaint.]


plaintiff to "be quiet". Plaintiff ignored the order. Defendant Stanton asked plaintiff to "be quiet" at least once more, after approaching him. Plaintiff explained that he had a right to speak under the First Amendment, and, after defendant Stanton walked away, he resumed his discourse, which was again loud enough to be heard across the street.

Defendant Stanton again asked plaintiff to cease his shouting. Plaintiff alleges that defendant Stanton then ran towards him, pushed him once, grabbed and pulled him, and forced him to the ground. Plaintiff states that he raised himself back up to his hands and knees, at which point defendant Stanton asked him to cease resisting arrest. Plaintiff states that he told defendant Stanton that he was not resisting, but that defendant Stanton then wrestled plaintiff to the ground. Plaintiff-states-that this-takedown forced his face against the pavement, bloodying his face and knocking off his eyeglasses.

Plaintiff alleges that defendant Stanton pinned him against the pavement. He also alleges that other officers arrived to help defendant Stanton, and that one or more of these officers knelt on plaintiff's back while pulling back his arms and handcuffing them. Plaintiff does not allege that any officer struck, beat, or physically assaulted him in any further manner.

Plaintiff states that the officers then lifted him up and transported him to the station house, where he was charged with assaulting a police officer and with disorderly conduct. Plaintiff alleges that, while at the station house, officers reapplied the handcuffs in such a fashion that he felt pressure in his wrists and soreness in his hands and arms. Plaintiff was detained until April 8, 1996, when a court dismissed the criminal charges.

Plaintiff's Complaint brings common law tort claims against the United States of America, and brings claims against defendant Stanton individually for violation of plaintiff's


constitutional rights under and First Amendments. Defendants move to move the claims against defendant Stanton in his individual capicity.

II Motion to Dismiss

Defendant has moved to dismiss parts of plaintiff's complaint. Dismissal is appropriate "only if 'it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations.'" Conley v. Gibson 355 U.S. 41, 45-46 (1957); Martin v. Ezeagu, 816 F.Supp. 20, 23 (D.D.C. 1993). In evaluating a. motion to dismiss, the Court must construe the complaint in the light most favorable to plainfiff and give plaintiff "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605,608 (D.C. Cir. 1979).

Defendant Stanton claims that plaintiff fails to state a claim against him in his individual capacity, because he enjoys qualified immunity from suit. Plaintiff opposes this argument, and alleges that defendant Stanton's qualified immunity is inapplicable in this case.

III Discussion

There is no question that defendant Stanton enjoys qualified immunity from liability in certain cases, Government officials who exercise discretionary authority, such as defendant Stanton, generally enjoy such immunity from individual liability. See e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982); Hunter v. District of Columbia, 943 P,2d 69, 75 (D.C. Cir. 1991); Stevens v. Stover, 727 F.Supp. 668, 670 (D.D.C. 1990).

Qualified immunity protects defendant Stanton from all individual liability unless he


knew or reasonably should have know his action violated plaintiff's clearly statutory or constitutional rights. Harlow, 457 U.S. at 815; Hunter, 943 F.2d at 75; Brogsdale v. Barry, 926 F.2d 1184, 1189 (D.C. Cir. 1991). The application of this Immunity generally rests on the reasonableness of a defendant's action, in light of the clearly established legal rules. Anderson v. Creighton 483 U.S, 635, 639 (1987); Hunter, 943 F.2d at 77; Brogsdale, 926 F.2d At 1189.

In order to defeat a defense of qualified immunity, a plaintiff must demonstrate both that he was deprived of a constitutional right and that the right in question was clearly established at the time of the alleged incident. Hunter, 943 F.2d at 75. Plaintiff's First and Fourth Amendment rights clearly April 8, 1996. Thus, the Court's soile inquiry is whether plaintiff's Complaint contains sufficient factsto support his allegations that defendant Stanton denied him his constitutional rights. Plaintiff has not pled sufficient facts, and therefore, the Court must dismiss the claims, because defendant Stanton is entitled to qualified immunity from liability.

Plaintiff alleges that defendant Stanton denied him his rights under the First and Fourth Amendments, Although he does not describe precisely how these rights were violated, the Complaint gives a fair indication of plaintiffs theories. Defendant Stanton prevented plaintiff from continuing his discourse in LaFayette Park and over Pennsylvania Avenue, thereby forming the basis for plaintiff's First Amendment claim. Plaintiff's Fourth Amendment claims must rest on allegations that defendant Stanton unlawfully arrested him or that defendant Stanton applied excessive force in his treatment of plaintiff. The Court will discuss each claim briefly, below.


A. First Amendment Claim

Plaintiff alleges that defendant Stanton denied him his constitutional his to right speech. Plaintiff alleges that he was engaged in protest speech and that defendant Stanton first asked him to stop, and then forcibly stopped his speech. However, it is clear that defendant Stanton was acting properly under the District of Columbia "Disorderly Conduct" statute. That statute prohibits persons from engaging in acts that might annoy, disturb, interfere with, obstruct, or be offensive to others," or from "shout[ing] or mak[ing] a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons." D.C. Code 22-1121. The statute is designed to prevent a breach of the peace, but it does not require that Police officers wait until peace is actually breached; instead, they may act when a breach appears likely to occur. See Chemalali District of Columbia, 655 A.2d 1226, 1228 (D.C. 1995).

From the facts alleged in plaintiff's complaint, there can be no doubt that plaintiff's conduct fit within the parameters of the statute, or that defendant Stanton reasonably believed that a breach of the peace was possible. Plaintiff was engaged in a loud, persistent shouting, which, by his own admission, could be heard by passersby throughout a public park and across a four lane road. Plaintiff engaged in this behavior not during the day, but at night, approximately two hours after sundown. Defendant Stanton did not originally require plaintiff to cease his speaking, but merely asked him to keep his voice to a reasonable, nighttime volume. Only after plaintiff persistently refused to obey defendant Stanton's request did defendant Stanton prevent plaintiff from continuing his shouting. The Court finds that


defendant Stanton acted reasonably in light of D.C. statutes, and that he therefore did not violate plaintiff's First Amendment rights. For his reason, defendant Stanton is entitled to qualified immunity on this claim.

B. False Arrest

Plaintiff's Complaint also seems to allege that defendant Stanton violated his Fourth Amendment right against false arrest. The elements for a constitutional claim of false arrest essentially the same as for a common law claim. See Scott v. District of Columbia, 101 F.3d 748, 753-54 (D.C. Cir. (1996). The key element is whether the arresting officer was justified in ordering the plaintiff's arrest; if he was, then his action is privileged. Id. In the case of qualified immunity, if the officer reasonably believed that he had probable cause to arrest, and if he acted reasonably under the circumstances, then he is immune from liability. Anderson, 483 U.S. at 641. [2]

In the present case defendant Stanton believed that he had probable cause to arrest plaintiff. While that belief may have been mistaken, under the facts pled by plaintiff, the belief was reasonable. Indeed, defendant Stanton might have arrested, and did arrest, plaintiff

[2. Plaintiff does not challenge the constitutionality of the D.C. Disorderly Conduct statute. Even if he did, it is unclear that it would overcome pendant Stanton ''qualified immunity, since the clearly settled legal rule at the time was that the statute permitted police officers to stop disruptive behavior. Furthermore, although the issue is not before the Court to decide at this time, the D.C. statute may very well be a permissible, restriction on the time, place, and manner of speech. See Clark v. Community for threat Non-Violence,468 U.S. 288 (1983); 1 968 F.2d 86 ( D.C. Cir. 1992). Therefore, a challenge to the constitutionality of the D.C. statute would not affect the issue of defendant Stanton qualified immunity]


for two different offenses - disorderly conduct and assaulting a police officer.[3]

The Court has already discussed plaintiffs conduct in light of the D.C. Disorderly Conduct statute, D.C. Code 22-1121. Plaintiff's Complaint states that he was shouting, [4] that he was shouting well after dark. In addition, plaintiff states that his purpose was to impart his message an all passerby, regardless of their level of interest. In his topics of choice. Finally, by his own admission, plaintiff ignored at least three requests to keep hids voice down; indeed, plaintiff's Complaint suggests that be may have stepped up his efforts in the face of defendant Stanton's orders. In light of this behavior, defendant Stanton acted reasonably in his determination that plaintiff's actions might cause a breach of the peace by annoying, disturbing, or interfering with other people; and that they therefore violated the statute. For this reason, plaintiff was not subjected to a false arrest on charges of disorderly conduct.

Similarly, defendant Stanton acted reasonably in arresting plaintiff on charges of assaulting a police officer. Federal law provides that one who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with a police officer who is engaged in official duties, is guilty of assault. 18 U.S.C. 111(a). According to plaintiff Complaint, defendant Stanton ordered him to lower his voice, and plaintiff repeatedly refused to obey the order.

[3. These charges were later dropped, but that does not affect the Courts' inquiry as whether defendant Stanton acted reasonably in light of the circumstances at the time of arrest.]

[4. In his opposition memorandum, plaintiff denies that he was shouting. However, he admits that he was speaking loudly enough that persons on the other side of Pennsylvania Avenue, a four lane street, could hear him clearly. Certainly, plaintiff must have significantly amplified his voice to achieve such a stentorian result. Plaintiff's objection is more semantic than substantive.


The Complaint also aleges that a physical struggle ensued while defendant Stanton was attempting to enforce his order, and it shows plaintiff participated in that struggle, at least to the extent that he attempted to oppose defendant Stanton's efforts to subdue him on the ground. Furthermore, plaintiff states that defendant Stanton believed that plaintiff was resisting arrest and that defendant Stanton expressed that belief to plaintiff. Plaintiff argues that he was not resisting, but the key issue is whether defendant Stanton reasonably believed that there was resistance. In light of the facts which plaintiff pleads, the Court concludes that a reasonable police officer could have concluded that plaintiff was resisting arrest and impeding defendant Stanton from enforcing the peace. For this reason, defendant Stanton did not falsely arrest plaintiff on charges of assaulting a police officer.

C.Excessive Use of Force

Finally, plaintiff Complaint alleges that defendant Stanton used excessive force subdue and arrest him. Plaintiff states a claim only if he shows, through specific facts and not mere conclusions, that defendant Stanton's use of force was objectively unreasonable in light of the circumstances surrounding the arrest, Graham v. O'Connor, 490 U.S. 386, 393 (1989); Scott, 101 F.3d at 758-59. That inquiry requires a certain amount of deference to the judgment of police officers; the Court cannot examine the actions with "the 20/20 vision of hindsight., but must instead undergo a careful balancing of the facts surrounding the mess, including whether the plaintiff was resisting arrest, Graham, 490 U.S. at 396. Scott, 101 F.3d at 758-759.

In the present case, plaintiff alleges that defendant Stanton pushed him, then grabbed him and tugged him towards the ground. Plaintiff states that he forcibly prevented defendant.


Stanton from to the ground, and that he pushed himself partway back up. Plaintiff alleges that defendant Stanton held him in that position with his knee and then swung him around and thrust him to the ground. Plaintiff alleges that this force caused him a bloodied nose and forehead, and that it knocked his eyeglasses from his face.

Plaintiff alleges that other of officers approached and helped to hold him down, placing their knees on his back. Plaintiff alleges See that the officers may have carried batons, but he does not allege that they ever drew or brandished any weapons." Plaintiff does not allege that defendant Stanton or any of officer beat or struck him at any time. At most, plaintiff alleges that defendant Stanton was rough in subduing and arresting him. [5]

The facts pled in complaint establish that plaintiff persistently disobeyed Stanton's orders, and that plaintiff was, at least in some fashion, resisting defendant Stanton's attempts to arrest him. In light of plaintiff's pattern of intransigence towards defendant Stanton's orders, defendant Stanton was reasonable in fearing that the arrest would be difficult and that it would require a certain level of force. Defendant Stanton increased this level of force only after plaintiff forcibly resisted. There is so allegation that defendant Stanton sought to do more than subdue and arrest, plaintiff, or that any officer employed force for any malicious or punitive purpose. While the arrest may have been a rough one when viewed In hindsight from the calm of judicial chambers, a reasonable of officer in the same

[5. Plaintiff also alleges that the officers handcuffed him, and he alleges that, at a later time, in the stationhouse, they improperly placed new handcuffs on his wrists, causing him substantial pain and discomfort. Plaintiff's Complaint does not, however, allege that defendant Stanton ever applied handcuffs.. Therefore, that allegation cannot form the basis for a constitutional claim against defendant Stanton.]


position could have believed the force necessary in light of the circumstances. For this reason, defendant Stanton did not circumstances excessive force in arresting plaintiff.

IV Conclusion

Plaintiff alleges that defendant Stanton deprived him of his constitutional rights under the First and Fourth Amendment. Defendant Stanton is immune from those claims, however, unless plaintiff's Complaint contains sufficient facts to show that he reasonably should have know that he was violating those rights. Under the facts pled by plaintiff, however, it is clear that defendant Stanton acted reasonably in light of plaintiff's constitutional rights. Defendant Stanton was acting pursuant to a valid statute when ho sought to quiet plaintiff, so he acted reasonably in light of the First Amendment. Defendant Stanton arrested plaintiff pursuant to one federal and one state statute, and he reasonably believed that he had probable cause to make the arrest, so ho did not falsely arrest plaintiff.. Finally, defendant Stanton used only the amount of force that he reasonably thought necessary to effect the arrest, so he did not subject plaintiff to excessive force.

Therefore, plaintiff has not overcome defendant Stanton's presumption of qualified immunity.. For this reason, the claims against defendant Stanton in his individual capacity must be dismissed.

An order will accompany this opinion.

January 8, 1997

/s/Thomas F. Hogan
United States District Judge


Listing of Cases

1601 Pennsylvania Avenue