Lederman, Robert v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2002 Decided May 31, 2002

Nos. 01-5157 & 01-5158

Robert Lederman,

Appellant

v.

United States of America, et al.,

Appellees

Appeals from the United States District Court

for the District of Columbia

(No. 99cv03359)

Neal Goldfarb argued the cause for appellant/cross-

appellee. With him on the briefs was Arthur B. Spitzer.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued

the cause for appellees/cross-appellants. With her on the

briefs were Roscoe C. Howard, Jr., U.S. Attorney, and R.

Craig Lawrence, Assistant U.S. Attorney.

Before: Edwards and Tatel, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Concurring opinion filed by Senior Circuit Judge Silber-

man.

Tatel, Circuit Judge: In this interlocutory appeal, we

consider a facial First Amendment challenge to a regulation

banning leafleting and other "demonstration activit[ies]" on

the sidewalk at the foot of the House and Senate steps on the

East Front of the United States Capitol. Finding that the

sidewalk is a public forum and that no part of the ban is

narrowly tailored to further a significant governmental pur-

pose, we declare the ban unconstitutional. Because the Capi-

tol Police violated no clearly established legal rules in arrest-

ing Appellant for leafleting in violation of the ban, however,

we conclude that the officers named in Appellant's Bivens

claim are entitled to qualified immunity.

I.

The United States Capitol Grounds extend from Union

Station in the North to Virginia Avenue in the South, and

from Second Street Northeast to Third Streets North- and

Southwest, encompassing the Capitol itself as well as House

and Senate office buildings, a power plant, press areas, and

public open space. See Traffic and Motor Vehicle Regula-

tions for the United States Capitol Grounds ("Capitol

Grounds Regulations") Demonstration Areas Map. This case

involves only the smaller, approximately sixty-acre area of

grass, trees, sidewalks, and a few paved plazas--designed by

Frederick Law Olmstead in the late 1870s--that surrounds

the Capitol. See Architect of the Capitol, History of the U.S.

Capitol Grounds, at http://www.aoc.gov/cc/grounds/g_

history.htm (last visited Apr. 22, 2002). Although barricades

prevent vehicles from entering this central area except

through designated gatehouses, no barriers impede pedestri-

an access. As a result, members of the public use the area

extensively, commuting to work, sightseeing, posing for pic-

tures, jogging, and walking dogs.

Federal law charges the Capitol Police Board, consisting of

the Sergeant at Arms of the United States Senate, the

Sergeant at Arms of the House of Representatives, and the

Architect of the Capitol, with regulating "movement of all

vehicular and other traffic ... within the ... Capitol

Grounds." 40 U.S.C. s 212b(a). Acting on this authority, the

Board promulgated a regulation that restricts "demonstration

activity" near the Capitol, delimiting areas in which such

activity is entirely barred ("no-demonstration zones"), and

areas in which demonstrations are allowed, subject to various

permitting requirements ("demonstration permit zones").

Capitol Grounds Regulations art. XIX, s 158, amend. II, &

Demonstration Areas Map. "[D]emonstration activity"

means:

[P]arading, picketing, leafleting, holding vigils, sit-ins, or

other expressive conduct or speechmaking that conveys a

message supporting or opposing a point of view and has

the intent, effect or propensity to attract a crowd or

onlookers, but does not include merely wearing Tee

shirts, buttons, or other similar articles of apparel that

convey a message.

Id. s 158(a), amend. II. This definition incorporates several

minor revisions made during the course of this litigation.

Because these revisions do not affect our analysis, however,

we refer only to the current version throughout the remain-

der of this opinion.

In early 1997, the Capitol Police applied the demonstration

ban to a lone visitor to the Capitol Grounds, appellant Robert

Lederman, who was distributing leaflets in a "no-

demonstration zone": the sidewalk at the foot of the Senate

steps on the Capitol's East Front. An artist participating in

the annual Arts Advocacy Day, Lederman sought to publicize

a lawsuit he and others had brought regarding artists' rights

to sell their work on public sidewalks in New York City. In

addition to his leaflets, he carried a sign that read "Stop

Arresting Artists." Lederman v. United States, 89 F. Supp.

2d 29, 31 (D.D.C. 2000) ("Lederman I"). Capitol Police

officers approached Lederman and informed him that demon-

strations were not permitted on the East Front sidewalk but

that he could continue to leaflet if he moved to the lawn on

the far side of the paved East Front Plaza--still in the

central part of the Capitol Grounds but approximately 250

feet from the Capitol. Believing that he could not reach his

intended audience from the lawn, Lederman declined to

move. The officers then asked him to wait in another "no-

demonstration zone": the identical sidewalk area at the foot

of the House steps. While Lederman waited there, he re-

sumed leafleting, and, after repeated warnings, appellees

Lieutenant Loughery and Officer McQuay arrested him.

Lederman was charged in D.C. Superior Court with violat-

ing the Capitol Police Board's demonstration ban. Finding

the ban "unconstitutional on its face and as applied to [Leder-

man's] conduct," the Hearing Commissioner entered an un-

published judgment of acquittal. Id. at 31-32. Lederman

then filed this suit in the United States District Court for the

District of Columbia, challenging the constitutionality of the

demonstration ban and seeking compensatory damages for

his arrest from various parties, including the Federal Govern-

ment (under the Federal Tort Claims Act, 28 U.S.C. s 2674),

the District of Columbia (under 42 U.S.C. s 1983), and Lieu-

tenant Loughery and Officer McQuay (under Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971)). To support his standing to bring a

facial challenge to the entire ban, Lederman stated that he

"wishe[d] to come to Washington in the future, on subsequent

Arts Advocacy Days and on other occasions, to engage in

constitutionally-protected demonstration activity in the no-

demonstration zone--including, but not necessarily limited to,

leafleting and holding signs." First Am. Compl. p 36; see

also Lederman Decl. p 17.

The parties filed cross-motions for summary judgment, and

the district court issued a preliminary opinion declaring fa-

cially unconstitutional and permanently enjoining enforce-

ment of the portion of the ban that prohibits "other expres-

sive conduct or speechmaking that conveys a message ...

and has the intent, effect or propensity to attract a crowd or

onlookers." Lederman v. United States, 131 F. Supp. 2d 46,

53-55 (D.D.C. 2001) ("Lederman II") (internal quotation

marks and citation omitted). In so ruling, the court made

clear that its order pertained only to the East Front sidewalk

where Lederman was arrested, not to the paved East Front

Plaza nor to the remainder of the "no-demonstration zone"

surrounding the Capitol. Id. at 50-51. The court also de-

clined to address the constitutionality of the part of the ban

that proscribes parading, picketing, leafleting, holding vigils,

and sit-ins. See id. at 49, 53-54 (focusing analysis on ban on

"other expressive conduct or speechmaking that conveys a

message ... "). Turning to Lederman's Bivens claim against

Lieutenant Loughery and Officer McQuay, the district court

held that under "clearly established" First Amendment law in

the District of Columbia, expressive conduct on the Capitol

Grounds is protected unless it is "more disruptive or substan-

tial than [conduct] normally engaged in by tourists." Id. at

57. Although the court believed there was "a material,

factual dispute as to whether [the officers] reasonably applied

[this 'tourist standard'] when they arrested [Lederman]," id.,

it nevertheless concluded that because the Government failed

to prove the officers "acted reasonably or in compliance with

the ... standard," they could not invoke qualified immunity

as a defense to the Bivens claim, id. at 60.

All parties now appeal. Lederman challenges the district

court's failure to extend its ruling to the similar demonstra-

tion ban in "no-demonstration zones" other than the East

Front sidewalk, as well as its refusal to invalidate the entire

ban. The Government defends the ban's constitutionality and

challenges the district court's qualified immunity determina-

tion. Considering these issues de novo, see, e.g., Sturdza v.

United Arab Emirates, 281 F.3d 1287, 1293 (2002) (noting

standard of review on summary judgment), we do not limit

our analysis--as did the district court--to the portion of the

ban that proscribes "expressive conduct or speechmaking that

conveys a message ... and has the intent, effect or propensi-

ty to attract a crowd or onlookers." Capitol Grounds Regula-

tions art. XIX, s 158(a), amend. II. Given Lederman's arrest

for leafleting and his intent to return to the Capitol Grounds

to engage in other expressive activity on the East Front

sidewalk, see supra p. 4, he has standing to challenge the

entire regulation because he has established a "distinct and

palpable" threat of future "direct injury"--arrest. Meese v.

Keene, 481 U.S. 465, 472 (1987) (internal quotation marks and

citation omitted).

II.

As the district court rightly observed, the "degree of First

Amendment scrutiny accorded to governmental decisions lim-

iting speech on public property depends on whether the

property in question is a traditional public forum, a govern-

ment-designated public forum, or a non-public forum." Led-

erman I, 89 F. Supp. 2d at 35. To determine the constitu-

tionality of the challenged demonstration ban, therefore, we

must decide whether the East Front sidewalk is a public

forum. Lederman urges that we also consider the public

forum status of "no-demonstration zones" other than the

sidewalk where he was arrested, but we decline to do so on

the record before us.

In deciding how to classify the East Front sidewalk, we

have little maneuvering room, as courts have long recognized

that the Capitol Grounds as a whole meet the definition of a

traditional public forum: They have traditionally been open to

the public, and their intended use is consistent with public

expression. In Jeannette Rankin Brigade v. Chief of Capitol

Police, a three-judge panel of the United States District

Court for the District of Columbia, striking down a statute

that forbade " 'parad[ing], stand[ing], or mov[ing] in proces-

sions or assemblages' " around the Capitol, concluded that the

Grounds are "an area to which access cannot be denied

broadly or absolutely." 342 F. Supp. 575, 583-84 (D.D.C.

1972) (three-judge panel) (quoting 40 U.S.C. s 193g). The

Supreme Court summarily affirmed, making Jeannette Ran-

kin Brigade binding precedent. 409 U.S. 972 (1972). Later,

in Community for Creative Non-Violence v. Kerrigan

("CCNV"), we observed that "[t]here is no doubt that the

Capitol Grounds are a public forum." 865 F.2d 382, 383, 387

(1989) (upholding as "a reasonable time, place or manner

restriction" a regulation limiting the length of time during

which demonstration "[p]rops and [e]quipment" may remain

on the Grounds). Clearly, therefore, the "Grounds (excluding

such places as the Senate and House floors, committee rooms,

etc.) have traditionally been open to the public," and "the

primary purpose for which the Capitol was designed--legis-

lating"--is entirely consistent "with the existence of all pa-

rades, assemblages, or processions which may take place on

the grounds." Jeannette Rankin Brigade, 342 F. Supp. at

584. Indeed, in Jeannette Rankin Brigade, the district court

observed that "the fundamental function of a legislature in a

democratic society assumes accessibility to [public] opinion."

Id.

Despite this controlling case law, the Government insists

the sidewalk is a nonpublic forum because it is " 'some special

type of enclave.' " Appellees' Br. at 20 (quoting United

States v. Grace, 461 U.S. 171, 180 (1983)). In making this

argument, the Government relies on the differences between

this case and Grace, in which the Supreme Court considered

the constitutionality of a statute that prohibited " 'display [of]

any flag, banner, or device designed or adapted to bring into

public notice any party organization, or movement' in the

United States Supreme Court building or on its grounds."

461 U.S. at 172-73 (alteration in original) (quoting 40 U.S.C.

s 13k (1949)). The Court limited its consideration of the

constitutional issues to the area where Grace and her fellow

demonstrators had attempted to exercise their First Amend-

ment speech rights--the "public sidewalks surrounding the

Court building." Id. at 175. Observing that "[s]idewalks ...

are among those areas of public property that traditionally

have been held open to the public for expressive activities,"

id. at 179, the Court concluded that the sidewalks surround-

ing the Court building were no exception. Writing for the

majority, Justice White elaborated:

The sidewalks comprising the outer boundaries of the

Court grounds are indistinguishable from any other side-

walks in Washington, D.C..... There is no separation,

no fence, and no indication whatever to persons stepping

from the street to the curb and sidewalks ... that they

have entered some special type of enclave.... "Con-

gress ... may not by its own ipse dixit destroy the

'public forum' status of streets and parks which have

historically been public forums...."

Id. at 180-81 (quoting United States Postal Serv. v. Green-

burgh Civic Ass'ns, 453 U.S. 114, 133 (1981) (alteration in

original)). Distinguishing Grace, the Government contends

that the East Front sidewalk "is significantly different" from

the sidewalks around the Court because the former "abuts

the Capitol Building, is well within the Capitol Grounds, and

does not run parallel to any city street." Appellees' Br. at

19-20. Unlike in Grace, however, where the Supreme Court

expressly declined to consider whether the Court building

and the remainder of its grounds are a public forum, in this

case the entire Capitol Grounds are a public forum. As a

result, the Government cannot prevail by establishing that

the East Front sidewalk "is well within" those Grounds.

Rather, to convince us the sidewalk is not a public forum, the

Government must establish that the sidewalk differs from the

remainder of the public Grounds in ways that make it unique-

ly "nonpublic."

Perhaps recognizing this requirement, the Government

next argues that "[i]t is entirely possible ... to have property

within areas constituting a traditional public forum be consid-

ered a nonpublic forum." Id. at 22. As evidence that the

East Front sidewalk warrants such an exemption, the Gov-

ernment asserts: "[t]he sidewalk ... has never been available

to the public for expressive activity," id. at 20; Congress

Members' use of the sidewalk for "quick and unimpeded

access to the House and Senate floors" is "not consistent with

public debate and assembly," id. at 22-23; and finally, the

sidewalk's function as a security perimeter around the Capitol

is equally incompatible with public use, id. at 23-24. We are

unpersuaded. To begin with, the sidewalk has never been

available for public expression primarily because, for almost a

century, such expression was prohibited anywhere on the

Capitol Grounds by the very statute declared unconstitutional

in Jeannette Rankin Brigade. 342 F. Supp. at 587-88. If

"time, place, or manner restrictions can[not] bootstrap them-

selves into validity by their mere existence, even if pro-

longed," Henderson v. Lujan, 964 F.2d 1179, 1183 (D.C. Cir.

1992) (emphasis added), then unconstitutional restrictions cer-

tainly cannot, by their mere existence, bootstrap subsequent

restrictions into validity.

The Government's arguments regarding the limited uses of

the East Front sidewalk are equally unconvincing. True, we

have recognized that an area's "specialized use[s] may out-

weigh the attributes that would otherwise mark [it] as [a]

public forum[ ]," but the Government has failed to meet its

"burden ... to show that the [sidewalk's] use [is] overwhelm-

ingly specialized." Id. at 1182. Even assuming, as did the

district court, that the sidewalk "is used primarily by people

coming to and from the Capitol building," Lederman II, 131

F. Supp. 2d at 51, we do not think that use sufficiently

"specialized" to warrant distinguishing the sidewalk from the

remainder of the Grounds for purposes of the public forum

analysis. If people entering and leaving the Capitol can avoid

running headlong into tourists, joggers, dogs, and strollers--

which the Government apparently concedes, as it has not

closed the sidewalk to such activities--then we assume they

are also capable of circumnavigating the occasional protester.

That "clusters of individual demonstrators could ... impede

access to the Capitol," Appellees' Br. at 23, is immaterial:

Although such concerns may provide a basis for reasonable

restrictions on the duration or size of a sidewalk demonstra-

tion, they cannot justify classifying the area as a nonpublic

forum. We likewise reject the proposition that demonstra-

tors of any stripe pose a greater security risk to the Capitol

building and its occupants than do pedestrians, who may

come and go anonymously, travel in groups of any size, carry

any number of bags and boxes, and linger as long as they

please. Again, the Government could address its concern--

the presence of "groups too large to surveil individually,"

carrying "unscreened personal containers and belongings,"

id.--through reasonable time, place, or manner restrictions

that, for example, limit the size of group demonstrations or

the number of individual demonstrators.

Finally, United States v. Kokinda, 497 U.S. 720 (1990),

which the Government cites for the proposition that all side-

walks are not necessarily public forums, does not control this

case. For one thing, although a plurality of the Kokinda

Court upheld the constitutionality of a U.S. Postal Service

regulation prohibiting individuals from "soliciting alms and

contributions" on the sidewalk leading from the Bowie, Mary-

land Post Office to the post office parking lot, id. at 722-23,

only four Justices agreed with the Government that the

sidewalk in question was a nonpublic forum, id. at 730.

Moreover, analyzing the public forum issue for the Chief

Justice and Justices White and Scalia, Justice O'Connor

focused on the fact that the sidewalk "le[d] only from the

parking area to the front door of the post office" and "was

constructed solely to assist postal patrons to negotiate the

space between the parking lot and the front door of the post

office, not to facilitate the daily commerce and life of the

neighborhood or city." Id. at 727-28. In contrast, the side-

walk at issue here wraps around the Capitol's East Front

almost without interruption, providing pedestrian access to

the entire front of the building in addition to the doors,

thereby facilitating tourist access to the Capitol--a center-

piece of our democracy.

In short, although the East Front sidewalk borders no

public streets, it is "continually open, often uncongested, and

constitutes not only a necessary conduit in the daily affairs of

[the city's] citizens, but also a place where people may enjoy

the open air or the company of friends and neighbors,"

Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452

U.S. 640, 651 (1981), and a place from which tourists may

view and photograph the Capitol. Under these circum-

stances, we agree with the district court that, like the rest of

the Capitol Grounds, the sidewalk is a traditional public

forum.

III.

Because the East Front sidewalk is a public forum, "the

government's ability to permissibly restrict expressive con-

duct [there] is very limited: [It] may enforce reasonable time,

place, and manner regulations as long as the restrictions 'are

content-neutral, are narrowly tailored to serve a significant

government interest, and leave open ample alternative chan-

nels of communication.' " Grace, 461 U.S. at 177 (quoting

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.

37, 45 (1983)). Lederman principally argues that the ban (1)

is not narrowly tailored to controlling traffic and promoting

security around the Capitol, and (2) fails to leave open ample

alternative channels of communication. Because we agree

with the former, we do not address the latter.

We begin with the principles that guide our narrow tailor-

ing analysis. First, we "closely scrutinize" challenged speech

restrictions "to determine if [they] indeed promote[ ] the

Government's purposes in more than a speculative way."

CCNV, 865 F.2d at 390. Second, per se bans on expressive

conduct are inherently suspect. See Grace, 461 U.S. at 182

(questioning the need for a "total ban" on carrying flags and

banners). Third, while the Government "must be afforded a

reasonable measure of discretion in determining how best to

promote" its identified interests, the Constitution does not

tolerate "regulations that, while serving their purported aims,

prohibit a wide range of activities that do not interfere with

the Government's objectives." CCNV, 865 F.2d at 390.

Fourth, "[t]he fact that a substantially less restrictive regula-

tion [would] be equally effective in promoting the same ends

may be relevant" to the constitutional analysis. Id.

The first principle presents little difficulty in this case. We

need not "speculat[e]" at all to assume that the demonstration

ban discourages some people from coming to the East Front

sidewalk to express themselves, thereby reducing pedestrian

traffic and decreasing risks to the Capitol and its occupants.

Thus, the Board could reasonably have concluded that the

ban would serve those interests.

The remaining principles, however, reveal the ban's pro-

found flaws. To begin with, it imposes precisely the sort of

"total" restriction on certain types of speech that the Su-

preme Court "question[ed]" in Grace. 461 U.S. at 182. Even

if we read the ban narrowly--assuming that the sole qualifier

(that the activity in question must convey a message and have

the "intent, effect or propensity" to attract more than one

onlooker) modifies the entire list of proscribed activities, from

"parading" to "speechmaking"--that qualifier is of no prac-

tical significance: Demonstration activity always conveys a

message (that is, after all, its purpose), and it has the

"propensity" to attract more than one onlooker whenever it is

loud or obvious enough to be heard or noticed by more than

one passerby. As the district court observed, "[i]t is hard to

conceive of much expression that a reasonable officer would

not find to be conveying a message[,] ... [and] an officer

reasonably could determine that any expressive conduct

meeting th[is] first definition, with the possible exception of

private conversations, has the ... 'propensity' to attract ...

onlookers." Lederman II, 131 F. Supp. 2d at 54. The regula-

tion's exemption of expressive tee-shirts and buttons is equal-

ly insignificant. As in Grace, the problem here is that certain

types of speech (parading, picketing, leafleting, vigils, sit-ins,

and speechmaking) are, even under a narrow reading, almost

entirely prohibited. That the ban permits other types of

speech may establish that it "leave[s] open ample alternative

channels of communication," Grace, 461 U.S. at 177 (internal

quotation marks and citation omitted), but that fact hardly

demonstrates that the ban is narrowly tailored to its objec-

tives.

The ban's absolute nature might be less troubling if--in

accordance with the third principle--all listed demonstration

activities could reasonably be expected to interfere with the

stated objectives of traffic control and safety. Some banned

activities, however, cannot possibly pose that risk. For exam-

ple, a single leafleteer standing on the East Front sidewalk

will no more likely block traffic or threaten security than will

photographers, star-struck tourists, and landscape painters

complete with easels, but the Board has made no effort to

keep any of these latter individuals away from the Capitol.

"Freedom of expression ... would rest on a soft foundation

indeed if government could distinguish" between demonstra-

tors and pedestrians on "a wholesale and categorical basis,"

without providing evidence that demonstrators pose a greater

risk to identified government interests than do pedestrians.

Police Dep't of Chicago v. Mosley, 408 U.S. 92, 101 (1972).

We likewise doubt that "a group of congressional staffers"

standing "outside the Capitol arguing [loudly] about the latest

... bill" would impede traffic flow or raise security concerns,

yet "assuming that the ban was applied literally and even-

handedly," such a group "would presumably be risking cita-

tion or arrest for engaging in 'expressive conduct.' " Leder-

man I, 89 F. Supp. 2d at 41.

Perhaps the most troubling aspect of the Board's virtually

per se ban on expressive activity on the East Front sidewalk

is the ready availability of "substantially less restrictive"

alternatives that would "equally effective[ly]" promote safety

and orderly traffic flow. CCNV, 865 F.2d at 390. For

example, the Board could rely on existing laws that bar

visitors to the Capitol Grounds from "utter[ing] loud, threat-

ening, or abusive language, ... engag[ing] in any disorderly

or disruptive conduct," or "obstruct[ing] ... or ...

imped[ing] passage through or within" the Grounds. 40

U.S.C. s 193f(b)(4)-(5). Alternatively, the Board could re-

quire permits for demonstrations on the sidewalk, limit the

duration of such demonstrations, restrict the number of indi-

viduals who may demonstrate simultaneously, require that

demonstrators present bags and other personal possessions to

police officers for screening, or prohibit activities likely to

attract large crowds. We emphasize that in listing these

alternatives, we do not intend to provide the Board with

specific suggestions for future regulations--indeed, we are

uncertain that every identified alternative would survive con-

stitutional scrutiny, though some surely would. Rather, our

list shows only that the Government could achieve its intend-

ed objectives while also permitting some demonstrations on

the East Front sidewalk.

Moreover, because our hypothetical alternatives, like the

existing ban, aim at future speech, we find unconvincing the

Government's warning that striking down the current ban will

somehow preclude the Police Board from "enact[ing] regula-

tions to address conduct reasonably expected to occur." Ap-

pellees' Br. at 28. We well recognize that under established

First Amendment doctrine, the Government may issue rea-

sonable, prospective, time, place, and manner regulations that

restrict expressive activity on the East Front sidewalk. We

hold only that, as currently written, the demonstration ban

imposes "a serious loss to speech ... for a disproportionately

small governmental gain," White House Vigil for the ERA

Comm. v. Clark, 746 F.2d 1518, 1544 (D.C. Cir. 1984) (Wald,

J., concurring in the judgment in part and dissenting in part

on other grounds), thus violating the narrow tailoring require-

ment.

IV.

This brings us to the issue of Lieutenant Loughery's and

Officer McQuay's qualified immunity for arresting Lederman.

"Qualified immunity shields officials from liability for dam-

ages so long as their actions were objectively reasonable, as

measured in light of the legal rules that were 'clearly estab-

lished' at the time of their actions." Kalka v. Hawk, 215 F.3d

90, 94 (D.C. Cir. 2000) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818-19 (1982)). In analyzing this issue, we first

determine whether "the facts alleged show the officer's con-

duct violated a constitutional right." Saucier v. Katz, 533

U.S. 194, 201 (2001). "[I]f a violation could be made out on a

favorable view of the parties' submissions, the next ... step is

to ask whether the right was clearly established." Id. If

existing law at the time of the violation "did not put the

officer on notice that his conduct would be clearly unlawful,

summary judgment based on qualified immunity is appropri-

ate." Id. at 202.

By finding the Police Board's demonstration ban unconsti-

tutional, we have resolved the "threshold question," id. at 201:

Lederman's arrest violated his constitutional rights. For

three reasons, however, we do not believe that existing law at

the time of the arrest "put [Lieutenant Loughery and Officer

McQuay] on notice that [their] conduct would be clearly

unlawful." Id. at 202. First, while Jeannette Rankin Bri-

gade and CCNV establish that the Capitol Grounds as a whole

are a public forum, neither case discusses individual areas of

the Grounds, and we agree with the Government that some

areas within a large public forum may be nonpublic if their

"use" is "specialized." Henderson, 964 F.2d at 1182. Indeed,

the three-judge panel in Jeannette Rankin Brigade suggest-

ed that its First Amendment analysis might have produced a

different result if the expressive conduct at issue had oc-

curred "near or in the immediate vicinity of the Capitol

itself." 342 F. Supp. at 584 (internal quotation marks omit-

ted). While we now explicitly hold that the First Amendment

analysis does not, in fact, differ on the East Front sidewalk,

we nevertheless think a reasonable police officer could have

believed that the sidewalk's proximity to the Capitol altered

the First Amendment balance with respect to demonstration

activities there.

Second, we agree with the Government that because nar-

row tailoring is "not an exact science," a reasonable officer

should not be expected to perform that analysis prior to

arresting an individual for violating an ostensibly lawful time,

place, and manner restriction governing expressive activity in

a public forum. Appellees' Br. at 52. As the Supreme Court

stated in a different context prior to Harlow:

The enactment of a law forecloses speculation by enforce-

ment officers concerning its constitutionality--with the

possible exception of a law so grossly and flagrantly

unconstitutional that any person of reasonable prudence

would be bound to see its flaws. Society would be ill-

served if its police officers took it upon themselves to

determine which laws are and which are not constitution-

ally entitled to enforcement.

Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); see also

Grossman v. Portland, 33 F.3d 1200, 1210 (9th Cir. 1994)

("[A]n officer who reasonably relies on the legislature's deter-

mination that a statute is constitutional should be shielded

from personal liability."). Although the demonstration ban is

a regulation not a statute, we think a similar standard applies

here. While we find the ban's sheer breadth astonishing, we

recognize that the Police Board made some attempt at tailor-

ing--it exempted expressive tee-shirts and buttons and in-

cluded the phrases regarding "convey[ing] a message" and

"ha[ving] the intent, effect or propensity to attract a crowd or

onlookers." Capitol Grounds Regulations art. XIX, s 158(a),

amend. II. Although those qualifiers cannot begin to satisfy

the narrow tailoring requirement, see supra pp. 11-12, we

think their inclusion in the ban keeps it from being "so

grossly and flagrantly unconstitutional," DeFillippo, 443 U.S.

at 38, that the officers should have recognized its flaws.

Third, as the Government points out, the East Front

sidewalk "has never been available to the public for expres-

sive activity." Appellees' Br. at 20; see also supra pp. 8-9.

Although the longstanding policy of prohibiting demonstra-

tions around the Capitol cannot "bootstrap" the current ban

"into validity," Henderson, 964 F.2d at 1183, we do think that

policy could have misled a reasonable police officer as to the

ban's constitutionality.

Finally, we must consider the significance of the District of

Columbia Court of Appeals' "tourist standard," on which the

district court relied. See supra p. 5. To begin with, contrary

to Lederman's assertion, we have never "held" that the

tourist standard "governs" the constitutionality "of arrests for

demonstration activity on the Capitol Grounds." Appellant's

Br. at 38. Rather, in Dellums v. Powell, the lone case in

which we cited the standard, we were applying a District of

Columbia law that District courts had "definitively construed"

to incorporate the standard. 566 F.2d 167, 177 (D.C. Cir.

1977) (citing United States v. Nicholson, Nos. 20210-69A et

al. (D.C.Ct. of Gen.Sess. June 19, 1969), aff'd, 263 A.2d 56

(D.C.App. 1970)). Of course, that we have never incorporated

the tourist standard into our First Amendment jurisprudence

does not resolve the qualified immunity issue because, in

evaluating what constitutes "clearly established statutory or

constitutional rights of which a reasonable person would have

known," Harlow, 457 U.S. at 818, we must look not just to

federal case law, but also to the law of the highest court in

the state in which the case arose, see Doe v. Delie, 257 F.3d

309, 321 n.10 (3d Cir. 2001) (reviewing federal appellate

decisions regarding what constitutes "clearly established"

law).

Even if the tourist standard represents "clearly estab-

lished" law, however, two factors convince us that the stan-

dard does not bar qualified immunity for the officers in this

case. First, although the District of Columbia Court of

Appeals has stated that it "impose[s] the 'tourist standard' to

save content-neutral statutes regulating the time, place, and

manner of expression from unconstitutionality in their appli-

cation," Berg v. United States, 631 A.2d 394, 398 (D.C. 1993),

we have found no case in which the court has applied the

standard to any federal law or regulation. Even assuming

that the appeals court would apply the standard to the

demonstration ban and other federal laws if given the oppor-

tunity, we see no basis for requiring reasonable police officers

to foresee that possibility. Second, we are unpersuaded that

Lederman's leafleting "clearly" met the standard. Because

District of Columbia courts have never applied the standard

to a case involving leafleting, we think a reasonable police

officer could conclude that leafleting, which requires some

minimal personal interaction between the leafleteer and his

audience, is "more disruptive" to passing pedestrians, includ-

ing Members of Congress and their staff, than the conduct of

an average tourist.

Overall, therefore, whether we review only the officers'

conduct in relying on the unconstitutional demonstration ban,

or consider also their alleged violation of the District of

Columbia tourist standard, we cannot conclude that their

arrest of Lederman violated his "clearly established" rights.

The officers are therefore entitled to qualified immunity.

V.

We declare the entire demonstration ban unconstitutional,

find that Lieutenant Loughery and Officer McQuay are enti-

tled to qualified immunity for their roles in Lederman's

arrest, and remand for entry of an injunction barring enforce-

ment of the ban and for further proceedings consistent with

this opinion.

So ordered.

Silberman, Senior Circuit Judge, concurring: I concur in

the court's opinion. We are certainly bound by Jeannette

Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575

(D.D.C. 1972) (three judge panel), aff'd, 409 U.S. 972 (1972).

However, I think it is distinctly possible that the later Su-

preme Court case, United States v. Grace, 461 U.S. 171

(1983), particularly the Court's implicit rejection of Justice

Marshall's position that the whole of the Supreme Court's

grounds are a traditional public forum, betokens a more

sympathetic reception to the government's arguments. To be

sure, Jeannette Rankin Brigade was summarily affirmed, but

the Court rarely considers itself bound by the reasoning of its

prior opinions--which is why I have referred to it as a "non-

court court," see United States v. Moore, 110 F.3d 99, 102

(D.C. Cir. 1997) (Silberman, J., dissenting from denial of

rehearing en banc)--let alone a summary affirmance. (Of

course, the Court's reluctance to offend Congress would not

be irrelevant.)

In light of my doubts as to how this case will be received by

the Supreme Court if certiorari is granted, I join my col-

leagues' treatment of the Bivens claim. However, I am

inclined to think that under applicable immunity law each of

the police officer's conduct should be judged as if he were the

lawyer for the Capitol Police.