Oberwetter v. Hilliard ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY BROOKE OBERWETTER,
Plaintiff,
v. Civil Action No. 09-0588 (JDB)
KENNETH HILLIARD and KENNETH
L. SALAZAR,
Defendants.
MEMORANDUM OPINION
On April 12, 2008 -- the eve of Thomas Jefferson's birthday -- Mary Brooke Oberwetter
and seventeen of her friends gathered at the Jefferson Memorial to honor the former president,
intending to do so through "expressive dance." Oberwetter, however, was stymied when shortly
after beginning her celebration, Officer Kenneth Hilliard of the United States Park Police ordered
her to stop dancing and leave the Jefferson Memorial. She refused, and asked Officer Hilliard
the reason for his command. He did not answer, and instead arrested Oberwetter for
demonstrating without a permit and interfering with an agency function.
Based on these events, Oberwetter brings this action against Officer Hilliard and Kenneth
Salazar, in his official capacity as Secretary of the Department of the Interior. She seeks
declaratory and injunctive relief on the theory that her expressive dancing is protected by the
First Amendment, and therefore Officer Hilliard's suppression of that activity is unconstitutional.
Oberwetter also seeks monetary damages from Officer Hilliard based on alleged violations of her
First and Fourth Amendment rights. Before the Court is [6] defendants' motion to dismiss, on
which the Court heard oral argument on December 11, 2009. Upon consideration of the
applicable law, the parties' several memoranda and the entire record herein, and for the reasons
stated below, the Court grants defendants' motion.
I. Background
A.
The National Park Service is tasked with regulating the Nation's parks and monuments,
which include the parks and monuments of the National Capital Region. See 16 U.S.C. § 1;
ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 951 (D.C. Cir. 1995). The Park Service's
National Capital Region comprises, in part, "the National Mall, the Washington Monument
grounds, and the Lincoln, Jefferson, and Vietnam Veterans Memorials." ISKCON, 61 F.3d at
951. "The Park Service has been directed to protect the 'fundamental purposes' of the Mall and
of the other parks and monuments within the National Capital Region." Id. at 952. To fulfill this
duty, it has promulgated regulations governing the use of these parks and monuments. See id.;
see also 36 C.F.R. § 7.96 (regulation governing parks and monuments in the National Capital
Region).
Of particular relevance here, the regulations generally prohibit demonstrations and special
events in the parks and monuments of the National Capital Region, unless they are held
"pursuant to a permit issued in accordance with the provisions of [36 C.F.R. § 7.96(g)(2)]." 36
C.F.R. § 7.96(g)(2). Where a demonstration or special event involves fewer than twenty-six
individuals, however, it may occur "without a permit provided that the other conditions required
for the issuance of a permit are met." Id. at § 7.96(g)(2)(i). These general provisions, however,
do not apply to all of the monuments in the National Capital Region. Indeed, the Park Service
may not issue permits for demonstrations and special events at the Washington Monument, the
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Lincoln Memorial, the Jefferson Memorial, and the Vietnam Veterans Memorial. See id. §
7.96(g)(3)(ii)(A)-(D). The Park Service's stated goal in prohibiting demonstrations at these four
monuments is "protecting legitimate security and park value interests, including the maintenance
of an atmosphere of calm, tranquility, and reverence in the vicinity of [these] memorials." 41
Fed. Reg. 12879, 12880 (Mar. 29, 1976). Despite this broad prohibition on demonstrations at
these four monuments, the Park Service does permit certain "official" commemorative events at
these locations, including "the official annual commemorative Jefferson birthday ceremony." 36
C.F.R. § 7.96(g)(3)(ii)(C).
The regulations also prohibit individuals from interfering with the Park Service's
protection of the nation's parks and monuments. An individual may not "threat[en], resist[],
intimidat[e], or intentionally interfer[e] with a government employee or agent engaged in an
official duty, or on account of the performance of an official duty." Id. § 2.32(a)(1). Nor may an
individual
[v]iolat[e] the lawful order of a government employee or agent authorized to
maintain order and control public access and movement during fire fighting
operations, search and rescue operations, wildlife management operations
involving animals that pose a threat to public safety, law enforcement actions, and
emergency operations that involve a threat to public safety or park resources, or
other activities where the control of public movement and activities is necessary
to maintain order and public safety.
Id. § 2.32(a)(2). With exceptions not relevant here, "[a] person convicted of violating a provision
of the [National Park Service's] regulations . . . shall be punished by a fine as provided by law, or
by imprisonment not exceeding 6 months, or both . . . ." Id. § 1.3(a).
B.
The Jefferson Memorial is located on the south bank of the Tidal Basin in West Potomac
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Park in Washington, D.C.1 This site was chosen for its aesthetic and architectural significance:
"The importance of Jefferson as one of the great figures in the Nation's history demanded a
memorial site of prominence in the central plan of the Capital City and in relation to the other
great memorials already built." Defs.' Mem. in Supp. of their Mot. to Dismiss ("Defs.' Mem.")
[Docket Entry 6], Declaration of Stephen Lorenzetti, Attachment 2 (National Park Service
Brochure Describing the Thomas Jefferson Memorial), 1. The Memorial is a circular, open-air
structure topped by a domed roof. It is surrounded on all sides by a series of Ionic columns, and
its interior is again ringed with a series of Ionic columns. To enter the Memorial, visitors must
climb forty steps, rising from ground level to a portico. These steps are accessible only by means
of a public path that runs along the Tidal Basin, and a public path that runs through West
Potomac Park. After ascending the steps, visitors must travel through the portico to enter the
Memorial's interior chamber. This portico provides the only method of accessing the Memorial's
interior chamber. When entering the chamber, visitors pass a sign requesting "Quiet Respect
Please."
C.
Mary Brooke Oberwetter and seventeen of her friends gathered in the interior of the
Jefferson Memorial on the eve of Jefferson's birthday to "celebrate and honor Thomas Jefferson,
1
The Court takes judicial notice of the characteristics of the Jefferson Memorial and the
parkland surrounding it. See Fed. R. Evid. 201(b) (judicial notice appropriate where fact is "not
subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned"). Although the Court therefore will
consider the parties' submissions that describe the physical characteristics of the Memorial and
the surrounding parkland in resolving defendants' motion, it will not consider the parties' other
declarations and exhibits included with their briefing. Neither party indicated that the Court
should convert defendants' motion to dismiss into a motion for summary judgment.
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his ideals, and his political legacy, on the occasion of his birth." Compl. ¶ 12. They did so with
expressive dance -- "the dancers danced for the most part by themselves, in place, each listening
to his or her music on headphones" because such activity expressed "the individualist spirit for
which Jefferson is known." Compl. ¶ 13.
Oberwetter and her friends began dancing "at approximately five minutes to midnight,
April 13, 2008 [sic]." Compl. ¶ 13. Shortly thereafter, Oberwetter alleges Officer Hilliard of the
United States Park Police "approached Plaintiff while she was silently dancing in place, listening
to music through earbud[] [headphones]. Defendant Hilliard pushed Plaintiff, and then left.
Moments later, Defendant Hilliard returned to Plaintiff, who was still quietly dancing, and
ordered her to leave." Compl. ¶ 17. She offers that she "removed an earbud so that she could
speak with Defendant Hilliard," asking why Officer Hilliard "was ordering her to leave, and what
law she was violating." Compl. ¶ 18. According to Oberwetter, however, "Defendant Hilliard
refused to answer, insisting only that Plaintiff stop dancing and leave the Jefferson Memorial."
Compl. ¶ 18.
Oberwetter "agreed to stop dancing and leave the Jefferson Memorial if Defendant
Hilliard would only provide a lawful reason why she needed to do so." Compl. ¶ 19. She alleges
that Hilliard would not do so, "and instead arrested Plaintiff." Compl. ¶ 19. Although
Oberwetter contends that "at all times [she was] peaceful and did not resist Defendant Hilliard or
any other officer in any way," Compl. ¶ 20, she states that Hilliard "used more force than was
necessary to effect his arrest of Plaintiff, ripping apart her earbud, shoving her against a pillar,
and violently twisting her arm." Compl. ¶ 21.
After Oberwetter's arrest, a Park Police officer advised her that she would be charged
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with "disturbing the peace," and issued her a citation for "Interfering with an Agency Function"
in violation of 36 C.F.R. § 2.32(a)(1)-(2). Compl. ¶ 22. She "was held for approximately five
hours before being released." Compl. ¶ 23. "Several days" later, "Park Police officers arrived at
Plaintiff's house and gave her two citations issued by Defendant Hilliard: an apparently
superceding citation for 'Interfering with an Agency Function,' . . . and an additional citation for
'Demonstrating Without a Permit,' in violation of 36 C.F.R. § 7.96(g)(3)(ii)(C)." Compl. ¶ 24.
At her court appearance, the court found "that the prosecution was not properly before the Court
and advised Defendant Hilliard that if he wished to proceed, he would have to properly prepare
the matter for hearing." Compl. ¶ 25. The Park Service has taken no further action on this
matter. Compl. ¶ 25.
Based on these allegations, Oberwetter seeks a declaratory judgment that "expressive
activity and assembly of the kind suppressed by Defendant Hilliard on the evening of April 12-
13, 2008, is protected by the First Amendment . . . ; and that 36 C.F.R. §§ 2.32(a)(1)-(2) & 7.96
are unconstitutional as applied to prohibit such activity." Compl. ¶ 36. She also seeks an order
enjoining the government from enforcing the challenged regulations so as to prohibit expressive
dancing within the Memorial. In support of her request for equitable relief, she states that she
"would again silently dance at the Jefferson Memorial . . . but refrains from doing so because she
reasonably fears arrest, prosecution, fine, and/or incarceration if she were to do so again."
Compl. ¶ 26. Oberwetter also pursues three Bivens claims against Officer Hilliard for (1)
limiting Oberwetter's right of free speech and assembly in violation of the First Amendment; (2)
arrest without probable cause in violation of the Fourth Amendment; and (3) excessive force in
violation of the Fourth Amendment. Compl. ¶¶ 28-34.
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II. Standard
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a
short and plain statement of the claim showing that the pleader is entitled to relief,' in order to
'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed
factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and
conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S.
at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570); accord Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach"
under which a court first identifies the factual allegations entitled to an assumption of truth and
then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.
The notice pleading rules are not meant to impose a great burden on a plaintiff. See Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to
dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should
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be liberally construed in his or her favor. See Leatherman v. Tarrant County Narcotics &
Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bur. of Prisons, 591 F.2d 966, 968
(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The
plaintiff must be given every favorable inference that may be drawn from the allegations of fact.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs
if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal
conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct]
devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks
omitted); see also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4
(D.C. Cir. 2008) (the court has "never accepted legal conclusions cast in the form of factual
allegations").
III. Challenges to the Regulations
A.
Before the Court may decide Oberwetter's request for declaratory and injunctive relief
against enforcement of the regulations, it must resolve two threshold issues. First, whether only
the Regional Director of the National Park Service -- as opposed to an individual like Oberwetter
-- may violate section 7.96's prohibitions on demonstrating without a permit. Second, whether
section 7.96(g)(1)(i)'s definition of "demonstration" encompasses the expressive dancing
Oberwetter engaged in. The Court takes each issue in turn.
1.
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Oberwetter begins by arguing that she could not have violated section 7.96; rather, in her
view, "the only person capable of violating [36 C.F.R. § 7.96] is the Regional Director of the
National Park Service, were he or she to issue a permit in violation of . . . 36 C.F.R. §
7.96(g)(3)." Pl.'s Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Opp'n") [Docket Entry 8], at 9. She
argues that the regulation "merely states that a permit under section 7.96(g)(3) will not be issued
for a demonstration or special event at the Jefferson Memorial, 'except for the official annual
commemorative Jefferson birthday celebration.'" Id. at 8-9 (quoting 36 C.F.R. §
7.96(g)(3)(ii)(C)). Accordingly, she asserts, the regulation does not purport to limit the conduct
of any individual visiting the Jefferson Memorial. See id.Oberwetter is correct as a semantic matter: no provision of section 7.96 explicitly
regulates an individual's conduct. But section 7.96 allows groups of more than twenty-five
people to demonstrate only pursuant to a properly issued permit. See 36 C.F.R. § 7.96(g)(2).
And section 7.96 prohibits permits for demonstrations at the Jefferson Memorial. See 36 C.F.R.
§ 7.96(g)(3)(ii)(C). If demonstrations must occur with a permit, and permits may not be issued
for demonstrations at the Jefferson Memorial, then it follows that individuals may not
demonstrate at the Jefferson Memorial. By this syllogism section 7.96 regulates individual
conduct. Accepting Oberwetter's interpretation of section 7.96, on the other hand, would produce
the anomalous result of wholly prohibiting certain conduct, but providing no means of enforcing
that prohibition. The Court is unwilling to interpret the regulation in such a way when both its
plain language and its obvious intent support a more sensible reading.
Oberwetter suggests, however, that even if section 7.96 regulates an individual's conduct,
it does not prohibit groups of fewer than twenty-six people from demonstrating without a permit
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at the Jefferson Memorial. This is so, she offers, because although no permits may be issued to
allow demonstrations at the Jefferson Memorial, demonstrations involving fewer than twenty-six
individuals may be held without a permit "provided that the other conditions required for the
issuance of a permit are met." 36 C.F.R. § 7.96(g)(2)(i). And, in her view, there are no
conditions on issuing permits at the Jefferson Memorial for the simple reason that no permits
may be issued at all for demonstrations at the Memorial -- groups of fewer than twenty-six
individuals therefore may demonstrate without restriction at the Jefferson Memorial. See Pl.'s
Opp'n at 12. Hence, according to Oberwetter, because she danced in a group of eighteen people,
Compl. ¶ 12, she could not have violated section 7.96.
Not so. Whether a permit may be issued at all is a "condition[] required for the issuance
of a permit." Indeed, if demonstrations involving fewer than twenty-six individuals may occur
only when the conditions required for the issuance of a permit are met, and there can never be
any such conditions because no permits may be issued for demonstrations at the Jefferson
Memorial, then it logically follows there can never be any demonstrations involving fewer than
twenty-six individuals at the Memorial. Although the Park Service could have articulated this
position more clearly, opacity does not decide cases. Section 7.96(g)(2)(i) cannot be read as
authorizing without restriction demonstrations involving fewer than twenty-six people at the
Jefferson Memorial in light of the complete prohibition on demonstrations involving more than
twenty-five people at the Memorial.
Moreover, this interpretation accords with the agency's conclusion that section 7.96 bans
all demonstrations at the Jefferson Memorial, which is evident from the National Park Service's
application of the regulation to Oberwetter's conduct. Even if the Court were convinced that the
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regulations did not definitively prohibit all demonstrations at the Memorial, it "must give
substantial deference to an agency's interpretation of its own regulations." Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994). The Court may adopt Oberwetter's interpretation
only "if the plain language of the regulation or 'other indications of the [agency's] intent' require"
that interpretation. Orion Reserves Ltd. P'ship v. Salazar, 553 F.3d 697, 707 (D.C. Cir. 2009)
(quoting Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1080-81 (D.C. Cir. 2007)). Here, the
plain language of section 7.96 does not support Oberwetter's interpretation that the regulation
allows unrestricted demonstrations involving fewer than twenty-six individuals at the Jefferson
Memorial; rather the plain language is consistent with the Department of the Interior's reasonable
interpretation of the regulation, to which the Court must give substantial deference.
2.
Taking another tack in her threshold challenge, Oberwetter contends that even if the
regulations could apply to her conduct, she did not "demonstrate" within the meaning of section
7.96(g)(1)(i). Under the regulation, the term "demonstration" includes
demonstrations, picketing, speechmaking, marching, holding vigils or religious
services and all other like forms of conduct which involve the communication or
expression of views or grievances, engaged in by one or more persons, the
conduct of which has the effect, intent or propensity to draw a crowd or
onlookers. This term does not include casual park use by visitors or tourists
which does not have an intent or propensity to attract a crowd or onlookers.
36 C.F.R. § 7.96(g)(1)(i). To celebrate Jefferson's birthday, Oberwetter "danced for the most part
by [herself], in place, . . . listening to . . . her music on headphones." Compl. ¶ 13.
This activity is a "form of conduct which involve[s] the communication or expression of
views or grievances . . . the conduct of which has the effect, intent or propensity to draw a crowd
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or onlookers." First, Oberwetter herself admits that she wished to express an opinion through her
dancing: she danced "to celebrate and honor Thomas Jefferson, his ideals, and his political
legacy, on the occasion of his birth." Compl. ¶ 12. Second, her dancing -- especially when done
as part of a large group -- has the effect or propensity to draw a crowd or onlookers. The Court
finds it no stretch to conclude that such activity would pique the curiosity of a passer-by. It
certainly is foreseeable to expect visitors to stop and observe a group of expressive dancers at a
national memorial.2
But Oberwetter argues that the Court cannot stop its analysis here -- the mere fact that
conduct may have the effect or propensity of drawing a crowd is insufficient by itself for that
conduct to fall within section 7.96(g)(1)(i). Rather, in her view, the challenged conduct must
also be sufficiently similar to the activities listed in section 7.96(g)(1)(i). See Pl.'s Opp'n at 10
(citing Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) ("The traditional canon of
construction, noscitur a sociis, dictates that words grouped in a list should be given related
meaning." (internal quotation marks omitted))). Following this logic, she contends that her
expressive dancing is unlike section 7.96(g)(1)(i)'s enumerated activities because although they
"typically involve loud vocalization, acting together as a tight-knit body of people and conveying
a uniform message, " her conduct "was meant to celebrate the individualist spirit for which
Jefferson is known." Pl.'s Opp'n at 10 (internal quotation marks omitted). But the enumerated
activities encompass a spectrum, from the boisterousness of picketing or speechmaking to the
quiet solicitude of a vigil. The common thread is that all of the listed activities "have as their
2
Section 7.96(g)(1)(i) does not require that the challenged conduct actually result in a
crowd or onlookers. Rather, it is sufficient that such activity have the tendency to produce that
result.
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primary purpose the communication or expression of views or grievances." 40 Fed. Reg. 58651,
58652 (Dec. 18, 1975). Oberwetter's celebration of Jefferson's individual spirit is one example of
such an activity. The Court need not parse whether Oberwetter's conduct falls closer to picketing
or to a vigil; that it is "roughly similar" to such conduct is sufficient to bring it within section
7.96(g)(1)(i)'s definition of "demonstration." See Begay v. United States, 128 S. Ct. 1581, 1585
(2008) (in construing a statute, unenumerated examples should be "roughly similar" to listed
elements).3
B.
Because section 7.96 applies to Oberwetter's conduct -- i.e., it is expressive and
communicative -- the Court must decide whether the First Amendment gives Oberwetter a right
to engage in such conduct in the interior of the Jefferson Memorial, and if so, whether the
regulation is constitutional to the extent that it prohibits such activity.4 To determine whether a
restriction on expressive activity on public property is constitutional, the Court must first identify
the nature of public property at issue. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460
3
Even if this Court were not convinced that the regulations definitively encompassed
Oberwetter's conduct, the Park Service's conclusion that her expressive dancing falls within the
regulatory definition is entitled to substantial deference. See Thomas Jefferson Univ., 512 U.S.
at 512. Neither the plain language nor the regulation's history supports Oberwetter's
interpretation that section 7.96(g)(1)(i)'s definition of demonstration excludes expressive
dancing.
4
Oberwetter's dancing is protected activity under the First Amendment. See R.A.V. v.
City of St. Paul, Minn., 505 U.S. 377, 382 (1992) ("The First Amendment generally prevents
government from proscribing speech, or even expressive conduct."). Although not all conduct is
protected under the First Amendment, it is where it contains a patently expressive message. See,
e.g., Texas v. Johnson, 491 U.S. 397 (1989) (burning American flag to protest Republican
nomination of Ronald Reagan); United States v. O'Brien, 391 U.S. 367 (1968) (burning draft
registration card to protest Vietnam war). Such is the case here, see Compl. ¶ 12, which
defendants appear to concede. See Defs.' Mem. at 16 n.12.
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U.S. 37, 44-45 (1983).5 The nature of the property dictates the showing the government must
make to establish that its restriction is constitutional. Id.
1.
Determining the nature of the Jefferson Memorial's interior is a particularized inquiry,
and turns on the unique characteristics of the Memorial. See United States v. Kokinda, 497 U.S.
720, 728-29 (1990) (plurality opinion) ("[T]he location and purpose of a publically owned
sidewalk is critical to determining whether such a sidewalk constitutes a public forum."); United
States v. Grace, 461 U.S. 171, 180 (1983) (considering characteristics of sidewalks adjacent to
the Supreme Court to determine if they are a public forum); Henderson v. Lujan, 964 F.2d 1179,
1182 (D.C. Cir. 1992) (considering characteristics of sidewalks adjacent to the Vietnam Veterans'
Memorial to determine if they are a public forum). The D.C. Circuit undertook such a
particularized inquiry in Henderson, when it considered whether the sidewalks adjacent to the
Vietnam Veterans' Memorial were a public forum for the purpose of assessing the
constitutionality of a ban on leafleting. See 964 F.2d at 1182-83. In concluding that the
sidewalks were a public forum, the court focused on the fact that (1) the sidewalks were
physically indistinguishable from ordinary sidewalks "used for the full gamut of urban walking";
(2) the sidewalks "are used by thousands of pedestrians every year, including not only the
Memorial visitors, but also people going to other places"; and (3) the record did not indicate the
5
There are three types of public property for purposes of First Amendment analysis:
traditional public forums, designated public forums, and nonpublic forums. See Perry, 460 U.S.
at 45-46. A traditional public forum is a site that "by long tradition or by government fiat has
been devoted to assembly and debate." Id. at 45. A designated public forum is "public property
which the State has opened for use by the public as a place for expressive activity." Id. A
nonpublic forum is "public property which [is] not by tradition or designation a forum for public
communication." Id. at 46.
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sidewalks at issue had a specialized use. Id. at 1182.
Oberwetter's expressive conduct occurred in the interior of the Jefferson Memorial, not
on the sidewalks or parkland surrounding it. And the physical characteristics of the Memorial's
interior indicate that it is a nonpublic forum. It is physically distinguishable from the
surrounding parkland: an individual must affirmatively decide to visit the interior of the Jefferson
Memorial. The visitor must step off of a path, ascend forty steps, and traverse a portico --
passing a sign requesting "Quiet Respect" -- before entering the Memorial's interior. Unlike the
sidewalks at issue in Grace and Henderson, the pedestrian is inevitably aware that in moving
from the parkland to the interior of the Memorial he or she "ha[s] entered some special type of
enclave." Grace 461 U.S. at 180. A pedestrian simply does not "happen" upon the interior of the
Memorial.
Furthermore, the Jefferson Memorial has the specialized purpose of publicizing one of
the nation's founders -- supporters and critics alike may visit the Memorial to contemplate
Jefferson's place in history. This purpose marks the Memorial as unique, and hence unlike
quintessential examples of public fora -- streets, parks, and sidewalks, all "necessary conduit[s]
in the daily affairs of a locality's citizens, but also . . . place[s] where people may enjoy the open
air or the company of friends and neighbors in a relaxed environment." Heffron v. Int'l Soc. for
Krishna Consciousness, Inc., 452 U.S. 640, 651 (1981).6 Indeed, the National Park Service has
6
Oberwetter offers that the "'Mall is a traditional public forum for purposes of the First
Amendment.'" Pl.'s Opp'n at 20 (quoting ISKON, 61 F.3d at 954)). That may be so for portions
of that large open area. But the Jefferson Memorial is not a part of the National Mall, and even if
it were, such a general reference is insufficient to label the interior of the Memorial a public
forum. See Henderson, 964 F.2d at 1182 ("paths leading to [Vietnam Veterans'] Memorial wall"
might be nonpublic fora, even though they are surrounded by areas constituting traditional public
fora).
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closed the interior of the Jefferson Memorial to a wide range of expressive conduct, thereby
indicating that it is "public property which [is] not by tradition or designation a forum for public
communication." Perry, 460 U.S. at 46; see also Marlin v. Dist. of Columbia Bd. of Election &
Ethics, 236 F.3d 716, 719 (D.C. Cir. 2001) (interior of polling place a nonpublic forum because
of "longstanding limitations on polling place speech").
Nevertheless, Oberwetter contends that the Park Service's ban on expressive conduct in
the interior of the Jefferson Memorial actually supports her conclusion that it is a public or
designated public forum. She notes that although the Memorial was completed in 1943, the Park
Service's prohibition did not go into effect until 1976; therefore, she argues, "the Memorial had
existed without the expressive conduct limitation for longer than it has with the expressive
conduct limitation." Pl.'s Opp'n at 23. But even though a ban on expressive conduct may not
have been in place for the Memorial's entire existence, the restrictions are not invalid "merely
because the government has for a time stayed its hand." Henderson, 964 F.2d at 1183. see also
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (government
cannot create a public forum "by inaction or by permitting limited discourse"). The history of the
Memorial prior to the expressive conduct ban would be relevant only if the interior of the
Memorial were a traditional public forum or designated public forum during the period prior to
the agency's promulgation of the prohibition. There is no allegation that was the case. Taken
together, then, the characteristics of the Jefferson Memorial and its regulatory history indicate
that the Memorial's interior is a nonpublic forum.
Even so, Oberwetter contends that, at the least, the interior of the Jefferson Memorial is a
designated public forum for the purposes of celebrating Thomas Jefferson's birthday. This is so,
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she posits, because the National Park Service permits "the official annual commemorative
Jefferson birthday ceremony" at the Jefferson Memorial. 36 C.F.R. § 7.96(g)(3)(ii)(C). And
therefore, in her view, "the government cannot seriously claim that a birthday celebration
(properly conducted)" -- which, she asserts, her expressive dancing reflected-- "is inconsistent
with the Memorial's intended use and inherent nature." Pl.'s Opp'n at 26. But Oberwetter cannot
convert the government's limited allowance of an official birthday celebration into a general
public right to "demonstrate" at the Jefferson Memorial in celebration of the former President's
birthday: again, "[t]he government does not create a public forum by inaction or by permitting
limited discourse." Cornelius, 473 U.S. at 802.
2.
A prohibition on expressive activities in a nonpublic forum does not violate the First
Amendment if it is viewpoint neutral and is "reasonable in light of the use to which the forum is
dedicated." Grace, 461 U.S. at 178; see also Perry, 460 U.S. at 46. Here, the ban on
demonstrations at the Jefferson Memorial satisfies these requirements.
As discussed above, the purpose of the Memorial is to publicize Thomas Jefferson's
legacy, so that critics and supporters alike may contemplate his place in history. The Park
Service prohibits all demonstrations in the interior of the Jefferson Memorial, in order to
maintain an "an atmosphere of calm, tranquility, and reverence," 41 Fed. Reg. at 12880, and
thereby fulfill this purpose. The D.C. Circuit has recognized these interests as legitimate goals of
speech regulation at our national memorials. See Henderson, 964 F.2d at 1184 ("This interest in
maintaining a tranquil mood at the [Vietnam Veterans'] Memorial wall is similar to ones that the
Supreme Court and this court have recognized as substantial."); see also Frisby v. Schultz, 487
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U.S. 474 (1988) (no picketing in front of a house in order to protect tranquility of home); City
Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (signs on public property can be "visual
assault"); White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984)
(interest in preserving public's view of White House justified ban on displaying signs on
sidewalk in front of White House). Prohibiting demonstrations is a reasonable means of ensuring
a tranquil and contemplative mood at the Jefferson Memorial. The Court can imagine that
permitting the public to engage in expressive dancing -- and various other forms of
demonstration -- could interfere with such an environment. That such conduct may result in a
crowd or onlookers is but one example of how the conduct could undermine "an atmosphere of
calm, tranquility, and reverence," a result that need not be tolerated before it is prevented. See
Cornelius, 473 U.S. at 810 ("[T]he Government need not wait until havoc is wreaked to restrict
access to a nonpublic forum.").
The Court recognizes that the regulation's definition of "demonstration" may encompass
conduct potentially not contemplated by the Park Service -- for example, a history professor
giving a lecture in the Memorial. But whether the regulation produces some silly results does not
determine the outcome here. The mere fact "[t]hat narrower regulations might be as effective or
more so . . . does not invalidate the means the [Park Service] has chosen. Regulation of a
non-public forum, unlike that of a public forum, need not be 'narrowly drawn to achieve its end.'"
Marlin, 236 F.3d at 721 (quoting Perry 460 U.S. at 45); see also Cornelius, 473 U.S. at 808 ("The
Government's decision to restrict access to a nonpublic forum need only be reasonable; it need
not be the most reasonable or the only reasonable limitation."). Accordingly, the Court cannot,
and will not, substitute its own vision of the best regulation to achieve the Park Service's interest,
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given that section 7.96 is reasonable as drafted.
The regulation is viewpoint neutral because its prohibition of "demonstrations" does not
favor certain ideas over others. See Boos v. Barry, 485 U.S. 312, 319 (1988). The Park Service
has not, in precluding the array of expressive activities that have an "the effect, intent or
propensity to draw a crowd or onlookers," 36 C.F.R. § 7.96(g)(1)(i), denied "access to a speaker
solely to suppress the point of view he espouses on an otherwise includible subject," Cornelius,
473 U.S. at 806. Indeed, the regulations do not limit the message of speech at all; rather they
exclude all demonstrative activities that reasonably could interfere with the "atmosphere of calm,
tranquility, and reverence" at the Memorial.7
* * * * *
Because the Jefferson Memorial is a nonpublic forum, section 7.96 need only be
viewpoint neutral and reasonable. It satisfies both these requirements. Hence, Oberwetter is not
entitled to a declaratory judgment that "expressive activity and assembly of the kind suppressed
by Defendant Hilliard on the evening of April 12-13, 2008, is protected by the First Amendment
. . . ; and that 36 C.F.R. §§ 2.32(a)(i)(2) & 7.96 are unconstitutional as applied to prohibit such
activity." Compl. ¶ 36.
7
Oberwetter suggests that the government's interest in "reverence" is a viewpoint-based
restriction on speech. See Pl.'s Opp'n at 28-29. She ignores the fact that the Henderson court
found such an interest legitimate. See Henderson, 964 F.2d at 1184. Moreover, her argument
rests on semantic play. She asks this Court to define "reverence" as "unyielding adoration." But
in the context of the regulation, the Park Service uses "reverence" only as a synonym for
"tranquil" and "contemplative." The Court cannot accept Oberwetter's unduly narrow definition,
especially when it does not comport with the D.C. Circuit's understanding of the term as used in
the same context.
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IV. Bivens Claims
Oberwetter also seeks money damages from Officer Hilliard based on her allegations that
he (1) violated her First Amendment rights by suppressing her expressive dancing; (2) violated
her Fourth Amendment rights when he arrested her without probable cause; and (3) violated her
Fourth Amendment rights in using excessive force when arresting her. For their part, defendants
contend that Oberwetter is not entitled to damages because qualified immunity shields Officer
Hilliard's actions.
Qualified immunity protects a government official "'from liability for money damages
insofar as [the challenged] conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'" Pearson v. Callahan, 129 S. Ct. 808,
815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There are two inquiries
involved in the qualified immunity analysis. First, "[t]aken in the light most favorable to the
party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional
right?" Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, 129
S. Ct. at 818. And second, "whether the right was clearly established." Id. "The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at
202. This inquiry "must be undertaken in light of the specific context of the case, not as a broad
general proposition." Id. at 201; accord Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[T]he right
allegedly violated must be defined at the appropriate level of specificity before a court can
determine if it was clearly established.”). The Court may exercise its "sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first in
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light of the circumstances in the particular case at hand." Pearson, 129 S. Ct. at 818.
A.
Oberwetter's First Amendment Bivens claim is premised on the belief that she had a
constitutional right to engage in expressive dancing in the interior of the Jefferson Memorial.
But the Court has concluded that she possessed no such right, and therefore Hilliard could not
have violated Oberwetter's First Amendment rights. Accordingly, her First Amendment Bivens
claim necessarily fails.8
B.
Oberwetter's Fourth Amendment false arrest Bivens claim is grounded in her assertion
that Officer Hilliard lacked probable cause to arrest her for her expressive dancing. Based on the
facts alleged in the complaint, however, the Court concludes that Officer Hilliard had probable
cause to arrest Oberwetter. "'Probable cause to arrest exists when the facts and circumstances are
sufficient to warrant a prudent person to believe that the individual has committed an offense.'"
Olaniyi v. Dist. of Columbia, 416 F. Supp. 2d 43, 61 (D.D.C. 2006) (quoting Fernandors v. Dist.
of Columbia, 382 F. Supp. 2d 63, 71 (D.D.C. 2005)); see also Mich. v. DeFillippo, 443 U.S. 31,
37 (1979) (same). Here, Officer Hilliard approached Oberwetter in the interior of the Jefferson
Memorial "while she was silently dancing in place [and] listening to music through earbuds,"
Compl. ¶ 17 -- conduct prohibited by section 7.96. Upon Officer Hilliard's observation that
8
Even assuming that Oberwetter was able to show a violation of her First Amendment
rights, there is as yet no Bivens cause of action for violating the First Amendment. And the
Supreme Court recently suggested that it would not create an implied cause of action for a
violation of the First Amendment, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (free
exercise clause), a position that accords with the Court's reluctance to create new Bivens actions
generally, see Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). This Court need not address this
issue, however.
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Oberwetter was "demonstrating" in violation of section 7.96, he had probable cause to arrest her.
See DeFillippo, 443 U.S. at 37 (probable cause exists where regulation is violated in officer's
presence).9
Oberwetter nonetheless contends that Officer Hilliard could not have had probable cause
to arrest her for demonstrating without a permit because he did not cite her for that violation until
several days after her arrest. Compl. ¶ 24; see also Pl.'s Opp'n at 13 ("It took Defendant Hilliard
three days after the incident to cite Oberwetter for 'Demonstrating Without A Permit,' and even
then, he could do no more than cite a provision governing the Regional Director's behavior, not
that of any park visitor."). Such a temporal lag, however, does not alter the Court's conclusion.
The probable cause inquiry is objective. See Whren v. United States, 517 U.S. 806, 812-13
(1996). Therefore, "the fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification for the officer's action does not
invalidate the action taken as long as the circumstances, viewed objectively, justify that action."
Scott v. United States, 436 U.S. 128, 136 (1978). In other words, an officer's subjective motive
does not invalidate objectively reasonable behavior under the Fourth Amendment. See Whren,
9
Oberwetter suggests that Officer Hilliard could not have had probable cause to arrest her
because "the only person capable of violating [section 7.96] is the Regional Director of the
National Park Service." Pl.'s Opp'n at 9. Although the Court has already disposed of this
challenge, see Part III.A.1, supra, even were the Court to accept Oberwetter's interpretation it
would nonetheless conclude that Officer Hilliard's actions are immune from suit. Based on the
structure of the regulation, Officer Hilliard could reasonably have concluded that the regulation
prohibited Oberwetter from engaging in expressive dancing in the interior of the Jefferson
Memorial. And such a reasonable belief, even if mistaken, entitles Officer Hilliard to qualified
immunity. See Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993); see also Hunter v.
Bryant, 502 U.S. 224, 227 (1991) ("Even law enforcement officials who 'reasonably but
mistakenly conclude that probable cause is present' are entitled to immunity." (quoting Anderson
v. Creighton, 483 U.S. 635, 641 (1987))).
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517 U.S. at 812. The Court need not consider why Officer Hilliard waited three days to cite
Oberwetter for demonstrating without a permit because the objective facts supporting the citation
for demonstrating without a permit existed at the time of her arrest. Because Officer Hilliard had
probable cause to arrest Oberwetter then, her false arrest Bivens claim fails even though the Park
Police issued the citation three days after her arrest.10
C.
Finally, Oberwetter's Fourth Amendment excessive force Bivens claim is based on her
assertion that Officer Hilliard, in effectuating Oberwetter's arrest, "shov[ed] her against a pillar,
and violently twist[ed] her arm." Compl. ¶ 21. An officer, however, has the authority to use
"some degree of physical coercion or threat thereof" during the course of an arrest, and therefore
"not every push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers," violates the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 396 (1989).
"[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts
and circumstances confronting them, without regard to their underlying intent or motivation." Id.An officer will be found to have used excessive force only "if the force used was so excessive
that no reasonable officer could have believed in the lawfulness of his actions." Rogala v. Dist.
of Columbia, 161 F.3d 44, 54 (D.C. Cir. 1998); accord Wardlaw, 1 F.3d at 1303 (judgment for
officer appropriate unless "excessiveness of the force is so apparent that no reasonable officer
could have believed in the lawfulness of his actions"). This "objective reasonableness" inquiry
10
Although the Court is less confident that Officer Hilliard properly arrested Oberwetter
for interfering with an agency function in violation of 36 C.F.R. § 2.32(a)(1)-(2), it need not
reach this question because Oberwetter's violation of section 7.96 is sufficient to dispose of her
false arrest Bivens claim through the grant of qualified immunity to Officer Hilliard.
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"provides the test for evaluating both the scope of the officer's qualified immunity as well as the
plaintiff's claim of excessive force under the fourth amendment." See Wardlaw, 1 F.3d at 1303.
In applying the reasonableness test to Oberwetter's account of her arrest, the Court
"considers all of the facts as well as the inferences arising from the facts." Id. Here, these facts
and inferences indicate that Officer Hilliard's use of force was not excessive. He arrested
Oberwetter after she had twice refused to follow his order to stop dancing and leave the
Memorial. Compl. ¶¶ 17-19; see Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009)
(use of physical coercion reasonable in part because of "Wasserman's refusal to obey Rodacker's
order prior to his arrest[, which] suggested that he might try to resist or escape"). And
Oberwetter's arrest occurred in the midst of a group of her friends; although it is now quite clear
that no threat existed, at the time Officer Hilliard did not know the full extent of any threat
accompanying his arrest of Oberwetter. See Saucier, 533 U.S. at 208 (significant that officer
"did not know the full extent of the threat . . . posed").
In light of these circumstances, it was not unreasonable for Officer Hilliard to effectuate
Oberwetter's arrest by shoving her against a wall and manipulating her arm behind her back. To
hold otherwise would be to preclude an officer from using even minimal force to arrest an
individual. See Graham v. Connor, 490 U.S. at 396 (officer may use "some degree of physical
coercion or threat thereof" to effectuate an arrest). Instructively, the D.C. Circuit has upheld as
reasonable the level of force Officer Hilliard used here in a factually analogous context. In
Wasserman, a park police officer arrested an individual walking his dogs in violation of a District
of Columbia municipal ordinance. 557 F.3d at 636. The officer arrested the individual by
"forcefully pressing upwards on Wasserman's arm before handcuffing him, causing him pain."
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Id. The court found such force "was reasonable . . . to secure [Wasserman's] compliance during
arrest. Id. Notably, the court reached this conclusion despite the fact that the individual "was not
moving or offering any resistance" when the officer arrested him. Id. Accordingly, the Court can
discern no material difference between the force found reasonable in Wasserman, and that used
by Officer Hilliard here: both officers twisted the arrestee's arm to manipulate it into a position
where the hands could be cuffed. Compare Compl. ¶ 21, with Wasserman, 557 F.3d at 641. Nor
can it conclude that the circumstances surrounding the two arrests are sufficiently distinct to
counsel a different outcome here than in Wasserman.
To be sure, Oberwetter also alleges that Officer Hilliard "shov[ed] her against a pillar"
during the arrest, an allegation not made in Wasserman. But this allegation alone is insufficient
to render Officer Hilliard's conduct unreasonable under the circumstances. Shoving Oberwetter
against the wall allowed Officer Hilliard to subdue an individual that he reasonably believed
might try to resist arrest or escape. And it allowed him to quickly arrest her, when he was unsure
of the threat he faced at the time. Furthermore, Oberwetter nowhere alleges that she suffered
injury as a result of her arrest, either from her arm being twisted or from being shoved against a
pillar. An absence of "bruise or injury . . . tends to confirm that [Hilliard] did not use 'more force
than reasonably appeared necessary' to secure [Oberwetter's] compliance." Wasserman, 557 F.3d
at 641 (quoting Scott v. Dist. of Columbia, 101 F.3d 748, 760 (D.C. Cir. 1996)); see also Saucier,
533 U.S. at 209 ("Our conclusion [that the force used was reasonable] is confirmed by the
uncontested fact that the force was not so excessive that respondent suffered hurt or injury.");
Wardlaw, 1 F.3d at 1304 (that an individual "did not consider his injuries severe enough to
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require medical attention" indicates that the force used was reasonable).11 Accordingly,
Oberwetter's excessive force Bivens claim fails, along with her First Amendment and false arrest
Bivens claims.
V.
For the foregoing reasons, the Court will grant defendants' motion to dismiss. A separate
Order accompanies this Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: January 25, 2010
11
Oberwetter does allege that "[a]s a direct [result] of Defendant Hilliard's violation of
Plaintiff's Fourth Amendment rights, Plaintiff suffered a loss of her liberty, physical injury,
property damage, and associated mental anguish, shame and humiliation." Compl. ¶ 30
(emphasis added). But such a conclusory assertion of physical injury is insufficient to allege that
she suffered any injuries as a result of Officer Hilliard's arrest. See Iqbal, 129 S. Ct. at 1949 ("A
pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause
of action will not do.'" (quoting Twombly, 550 U.S. at 555)); id. ("Where a complaint pleads
facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between
possibility and plausibility of entitlement to relief. '" (quoting Twombley, 550 U.S. at 557)). And
nowhere, either in her complaint or even in the extensive briefing and argument on defendants'
motion, does Oberwetter suggest any specific injury she suffered as a result of Officer Hilliard's
conduct.
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