Appellee's Rewnewed Motion for Summary Affirmance

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No.95-5340

September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants

v.

United States of America, et al., Appellees

APPELLEES' RENEWED MOTION FOR SUMMARY AFFIRMANCE

Pursuant to the Order of the Court dated September 18, 1996 directing the parties to file motions governing this appeal after the Court's decision, in banc, in Crawford-El v. Britton, 93 F.3d 813,[1] appellees hereby respectfully renew their motion for summary affirmance of the August 23, 1995 Memorandum Opinion and Order of the Honorable Charles R. Richey. Appellees so move because, even in light of the Court's abrogation of the "heightened pleading" standard in Crawford-El, summary disposition remains appropriate because the "merits of this appeal are so clear as to make summary 'affirmance proper." Taxpayers Watchdoq. Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.), cert. denied, 449 U.S. 994 (1980); accord Ambach v. Bell, 686 F.2d 974, 979 (D.C. Cir. 1982) (per curiam).

I.

CRAWFORD-EL v. BRITTON

In Crawford-El v. Britton, this Court, overruled its prior holdings in Siegert v. Gilley, 895 F.2d 797 (D.C. Cir. 1990), and

[1 On October 16, 1996, Appellees, with appellants' consent, filed a motion to extend the time for them to file their motion pursuant to the Court's Order until October 23, 1996.]

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Martin v. D.C. Metropolitan police Dept., 812 F.2d 1425 (D.C. Cir. 1987), and discarded the rule that obliged Bivens plaintiffs to plead direct evidence of unconstitutional motive. The Court's ruling in Crawford-El addressed the question of the proper standard applicable to claims against government officials "where the [alleged] unconstitutionality of the official's act turns on his motive," 93 F.3d at 815.

This Court recognized in Crawford-El, that the landmark Supreme Court decision in Harlow v. Fitzgerald "allows an official to get summary judgment resolution of the qualified immunity issue, including the question of the official's state of mind, before the plaintiff has engaged in discovery on that issue." Id. The Court further held that claims against governmental officials are still subject to summary disposition unless "plaintiff offers clear and convincing evidence on the state-of-mind issue" at the summary judgment stage. Id.

This Court limited its decision in Crawford-El to motive-based claims against government officials. It does not disturb the settled principle, announced in Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), that "[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Accord Anderson v. Creighton, 483 U.S. 635, 640 (1987) (holding that in order to defeat claims of qualified immunity, the plaintiff must demonstrate that the individual official acted in a manner that was "objectively legally

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unreasonable," and "in the light of pre-existing law the unlawfulness [of the conduct in question] must be apparent"). See also Hunter v. District of Columbia, 943 F.2d 69, 75 (D.C. Cir. 1991).

Thus, absent a showing that the conduct at issue involved a "clearly established right," the Court need not reach the issue of unconstitutional intent, and claims of individual liability should be disposed of according to the settled principles of qualified immunity. The District Court's decision properly followed this approach and should be affirmed.

II.

APPELLANTS FAILED TO DEMONSTRATE A VIOLATION OF A CLEARLY ESTABLISHED RIGHT

In its August 23, 1995 Memorandum Opinion, the District Court aptly summarized appellants Amended Complaint as alleging "that the officers harassed the [Appellants] under color of the Park Service regulations, and improperly threatened to arrest [them] if they failed to remove signs, flags, and a plastic cooler from their demonstration site in Lafayette Park." Memorandum Opinion at 3. Although appellants also allege unlawful motive on the party of appellees,[2] the District Court's disposition of their claims appropriately focussed on the threshold issue of whether appellants

[2 The Amended Complaint alleges that "the actions of Officers O'Neil [sic] and Keness with respect to their relentless attempts to intimidate [appellants] to remove the constitutionally protect [sic], NPS-permited [sic] flags would constitute a pattern and practice of illegitimate abuse of power intended to suppress the free exercise of thought and expression." Amended Complaint at 7.]

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stated a violation of an established right, which the District Court properly concluded that they had not. Memorandum Opinion at 7-11. The Court concluded that the Park Service regulations at issue did not protect the forms of expression chosen by appellants, and that the officers did not abuse their authority in their attempts to enforce those regulations.

After clarifying that - appellants were not asserting a challenge to the Park Service regulations,[3] and relying on undisputed facts concerning appellants flag display, the District Court properly determined that appellants had failed to state claims of arbitrary enforcement and that appellees acted reasonably in their attempt to enforce the Park Service restrictions to appellants flag display. Therefore, the District Court correctly concluded that appellants had not stated a violation of their rights in connection with any of the officers' enforcement action.

[3 As Appellees noted in their original Motion for Summary Affirmance and will not repeat here the District Court's April 12, 1995 ruling dismissed all of appellants claims except their claim concerning their display of two flags. The Court initially determined, for purposes of qualified immunity, that there was no reasonable basis for appellee Park Police officers to apply size restrictions contained in National Park Service regulations to appellants' flag display. Following this ruling, however, both appellants and appellees sought reconsideration of the Court's April 12 decision. Appellants clarified that they were not pursuing a challenge to the Park Service regulations, and that instead their claims were of arbitrary enforcement of the regulations. Memorandum Opinion at n. 2. The District Court then determined that the only remaining issue was whether appellants' display of two flags complied with Park Service regulations. After determining that it did not, the District Court entered summary judgment in favor of appellees, concluding that appellants failed to state a violation of clearly established law.]

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In addition, 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 that otherwise violated the sign regulations. Memorandum Opinion at 10.

Therefore, the District Court's judgment of dismissal did not turn on the officers' motive. Rather, the District Court's decision in this case is grounded firmly in the settled law that governmental officials carrying out their duties are immune from liability in connection with the actions taken while carrying out those duties absent a showing of a violation of a clear right. In this case, the District Court properly determined that appellants had not demonstrated a violation of a clear right. The District Court concluded that appellants were subject to the Park Service regulations, and that the challenged actions of appellees were consistent with their authorlty to enforce those regulations.[4] Memorandum Opinion at 7.

[ The District Court correctly noted that the validity of the Park Service regulations at issue in this case as reasonable time, place, and manner restrictions has been decided by this Court. See e.g., White House Vigil v. Clark, 746 F.2d 1518, 1534 (D.C. Cir. 1984); Unites States v. Musser, 873 F.2d 1513, 1517-18 (D.C. Cir.), cert. denied, 493 U.S. 983 (1989).]

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The District Court's dismissal of this action was based on the unexceptional threshold determination that appellants failed to state a violation of a clearly established right. Therefore, the Crawford-El standard regarding motive-based claims simply does not apply here. The District Court's judgment of dismissal did not turn on a determination of whether appellants had provided direct evidence of motive, and need not be disturbed by the Court's rejection of that standard.

Rather, the District Court's decision in this case is grounded firmly in the settled law that governmental officials carrying out their duties are immune from liability in connection with the actions taken in carrying out those duties absent a violation of a clearly established right. In this case, the District Court properly determined that appellants had not demonstrated a violation of a clear right, since they do not possess a right to engage in expressive activities that do not comport with valid Park Service regulations. Thus, the District Court's dismissal of this action in favor of appellees should be affirmed summarily.

III.

APPELLANTS HAVE PRESENTED NO CLEAR AND CONVINCING EVIDENCE OF UNLAWFUL MOTIVE

Even were the Court to conclude that appellants asserted a motive-based claim, their claims still fail under the "clear and convincing evidence" standard of Crawford-El. The clear and convincing evidence standard requires a "firm conviction of the truth on the evidence" asserted. United States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994) citing Fishman, Clifford S. and

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Jones On Evidence: Civil and Criminal § 3:10 (7th ed. 1992) (other citations and internal quotations omitted). In this case, that standard requires that appellants do far more than allege unconstitutional motive; rather, they must, at the summary disposition stage, present evidence upon which a trier of fact could have a " firm belief or conviction" that their claim of unlawful motive is true. Id. Applying that standard to the facts of this case, appellants' evidence was woefully inadequate.

Reviewing the extensive filings by appellants in the District Court, including various affidavits by plaintiffs and other park demonstrators, nothing presented in the record of this action demonstrates clearly oy convincingly that any of appellees was animated by an unconst itutional motive. Rather, the evidence supports an attempt by appellees properly to enforce the Park Service regulations. Nothing in the record of this action, besides appellants self-serving and conclusory assertions, even suggests that another motive existed. This plainly fails to warrant anything other than the disposition on summary judgment entered by the District Court. Therefore, summary affirmance remains the appropriate disposition of this appeal.

IV.

Based on both the record in this appeal, and the standards from this Court's decision in Crawford-El, the District Court's dismissal should be affirmed summarily. The judgment of the District Court did not turn on the heightened pleading standard. Rather, it reached the correct conclusion that appellants simply

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failed to state a violation of a clearly established constitutional right. Moreover, even applying the proof standards announced in Crawford-El, dismissal of this action was correct since the record lacks any clear and convincing evidence of unconstitutional motive. Therefore, the judgment of the District Court should be summarily affirmed.

ERIC H. HOLDER, JR.
United States Attorney

R. CRAIG LAWRENCE
Assistant United States Attorney

KIMBERLY N. TARVER
Assistant United States Attorney

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing motion has been mailed, postage prepaid, this 23th day of October 1996, to:


William Thomas Apartment B
2817 llth Street, N.W.
Washington, D.C. 20001

KIMBERLY N. TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, l0th Floor
Washington, D.C. 20001
202-514-7141