The law is well-settled that government officials are entitled
to qualified immunity from suit for conduct arising in their
official capacities. 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, Fitzgerald, 457 U.S. 800 (1982), where the
United States 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.
4
1991) . In addition, it is settled that in seeking liability
against federal officials in their individual capacities, the
complaint must allege a specific constitutional deprivation of
plaintiffs' rights by that defendant supplemented with specific
factual allegations. Failure to allege a specific, factually
detailed constitutional violation deprives the Court of subject
matter jurisdiction over the claim and fails to state a claim as to
any individual liability for actions taken in an official capacity.
In such a case the complaint must be dismissed. See Carlson v.
Green, 446 U.S. 14, 18 (1980); Baker v. McCollan, 443 U.S. 137, 140
(1979); Davis v. Passman, 442 U.S. 228, 239 (1979).
This Circuit has held on several occasions that Bivens
plaintiffs are held to a "heightened pleading standard" which
requires plaintiffs "at the very least [to] specify the 'clearly
established' rights they allege to have been violated with
precis[ion]." Martin v. Malhoyt, 830 F.2d 237, 253, reh. denied
833 F.2d 1049 (D.C. Cir. 1987), guotins Smith v. Nixon, 807 F.2d
197, 200 (D.C. Cir. 1986), and Hobson v. Wilson, 737 F.2d 1, 29
(D.C. Cir. 1984) , cert. denied, 470 U.S. 1084 (1985) . This
heightened pleading standard is applicable to all Bivens cases no
matter what allegations are made. Martin v. Malhoyt, 830 F.2d at
253 and n.40. See also, Hunter v. District of Columbia, 943 F.2d at
75; Sieqert v, Gilley, 895 F.2d 797 (D.C. Cir.), aff'd on other
srounds, 111 S. Ct. 1789 (1991); Whitacre v. Davey, 890 F.2d 1168
(D.C. Cir. 1989), cert. denied, 110 S. Ct. 3301 (1990); Hobson, 737
F.2d at 29-31; Martin v. D.C. Metro~olitan Police Dept., 812 F.2d
5
1425, 1434-36 (D.C. Cir. 1987).[3]
Properly applying the principles of qualified immunity and
reviewing the Complaint by the heightened pleading standard, the
District Court determined in its April 12, 1995 decision that with
respect to all but appellan~s' claim concerning their display of
flags, appellees were entitled to dismissal of the claims brought
against them in their individual capacities. The District Court
found that appellants' allegations of negligent supervision by
appellee Robbins, false and threatened arrest, arbitrary
enforcement of a Park Service regulation to appellant Picciotto's
cooler, and prodding and banging with the officers' nightsticks did
not state a claim that the officers violated appellants' clearly
established constitutional rights or that they had acted
unreasonably or with improper motive towards appellants. April 12,
1995 Memorandum Opinion at pp. 12-15. However, based upon the
District Court's understanding of the nature of the claims
presented in this action at the time of its April 12, 1995
decision, it found that the enforcement of the Park Service sign
regulation to appellant's display of flags was not reasonable. In
finding no reasonable basis for the officers' conduct, the District
Court ordered the flag claim to proceed against Officers O'Neill
and Keness in their individual capacities. April 12, 1995
Memorandum Opinion at pp. 17-21.
[3 Part IV of this opinion was at one point vacated, 817 F.2d
144 (D.C. Cir. 1987), only to be reinstated subsequently. 824 F.2d
1240, 1246 (D.C. Cir. 1987).]
6
Based on the pleadings by the parties following the April 12,
1995 rulings, and with appellants' clarification that they do not
challenge the constitutionality of the sign regulation in this
action, in its August 23, 1995 Memorandum Opinion, the District
Court ruled that appellants had failed to present a ground for
reconsideration of its April 12, 1995 Memorandum Opinion and Order.
The District Court further ruled that in view of the appellants'
clarification of their claims, the portion of the April 12, 1995
Order concerning the flag claim was moot. August 23, 1995
Memorandum Opinion at pp. 4-5, n. 2. Thus, the District Court
proceeded with an analysis of the claim of arbitrary enforcement of
the Park Service sign regulations to appellants' flag display.
After review of the regulations at issue and other Park Service
regulations that provided guidance on the proper application of the
sign provisions, the District Court correctly determined that
appellants had not stated claims of arbitrary enforcement of the
Park Service regulatipns, and that the appellee officers had acted
reasonably in requiring appellants to remove the flags from the
display.
Supporting the District Court's decision was the undisputed
fact that the flag display consisted of the attachment of two flags
on poles to each side of appellant Picciotto's stationary sign.
The flag poles extended to a height more than six feet from the
ground. Memorandum Opinion at p. 8. The District Court concluded
that this arrangement of the flags ran afoul of the Park Service
regulations which restricted all signs that were not being hand
7
carried to a height of no more than six feet, and that the broad
definition of a "sign" under the regulations covered appellants'
flag-type banners. Memorandum Opinion at p. 9. The District Court
also appropriately rejected appellants' contention that the fact
that appellant Picciotto had, at one time, obtained a permit to
display two signs and two flags authorized the manner in which the
flags were displayed. The District Court found that the Park
Police officers were not deprived of their authority to enforce the
sign-size regulations by the fact that appellant Picciotto
possessed a permit, since the permit did not authorize the
arrangement of the signs or the flags in a manner otherwise
prohibited by the sign regulations. August 23 Memorandum Opinion
at p. 10. As the District Court correctly noted, the "permit
expressly required Picciotto to read and adhere to the Park Service
regulations concerning signs, structures, and camping in Lafayette
Park." August 23 Memorandum at p. 3. The District Court therefore
soundly concluded that "[w]ith or without the permit, the
[appellants] could not exceed the sign-size regulations and the
officers acted reasonably in requiring removal of the flags from
the Cappellants'] displays." Memorandum Opinion at p. 10.
In view of the Park Police officers' reasonable and proper
application of the Park Service regulations~ to the flag display,
the District Court concluded that appellants had failed to state a
claim of unreasonable or arbitrary enforcement and the claims
against them must be dismissed. Under these facts and the
controlling law, the dismissal of all claims asserted in this
8
action was clearly proper.
III.
Based on the foregoing and the record as a whole, appellants
plainly have failed to state a constitutional violation that would
entitle them to relief, and the District Court was correct in its
dismissal of all claims in this action. Therefore, the judgment of
the District Court should be summarily affirmed.
_______________________
ERIC H. HOLDER, JR.
United States Attorney
_______________________
R. CRAIG LAWJRENCE
Assistant United States Attorney
_______________________
KIMBERLY N. TARVER
Assistant United States Attorney