Oberwetter v. Hilliard

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2011 Decided May 17, 2011

No. 10-5078

MARY BROOKE OBERWETTER,

APPELLANT

v.

KENNETH HILLIARD, U.S. PARK POLICE, AND KENNETH LEE

SALAZAR, SECRETARY, U.S. DEPARTMENT OF INTERIOR,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00588)

Alan Gura argued the cause for appellant. With him on

the briefs was Candice N. Hance.

Harry B. Roback, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge: Late on the eve of the 265th

birthday of Thomas Jefferson—Author of the Declaration of

American Independence, of the Statute of Virginia for

Religious Freedom, and Father of the University of

Virginia—Officer Kenneth Hilliard of the United States Park

Police arrested plaintiff Mary Brooke Oberwetter when she

refused to stop what she describes as “silent expressive

dancing” inside the Jefferson Memorial. She filed suit against

Hilliard and the government alleging violations of her First

and Fourth Amendment rights. The district court dismissed

her complaint. For the reasons that follow, we affirm.

I

At quarter to midnight on April 12, 2008, Oberwetter and

seventeen friends entered the Jefferson Memorial to

“celebrate and honor the former President . . . by ushering in

his birthday with silent dance.”1 Appellant’s Br. 4. According

to Oberwetter, the dancing expressed admiration for Mr.

Jefferson’s political legacy. “In the individualist spirit for

which Jefferson is known, the dancers danced for the most

part by themselves, in place, each listening to his or her music

on headphones.” Compl. ¶ 13. The dancing took place inside

the Memorial, a circular structure with a domed roof and

colonnaded perimeter. “Apart from [Oberwetter] and her

associates, and employees of the National Park Service, there

1

For his part, Mr. Jefferson is on record discouraging celebration of

his birthday. “On Mr. Jefferson’s accession to the Presidency

[visitors] had waited on him, requesting to be informed, which was

his birthday, as they wished to celebrate it with proper respect. ‘The

only birthday I ever commemorate,’ replied he, ‘is that of our

Independence, the Fourth of July.’” THE FIRST FORTY YEARS OF

WASHINGTON SOCIETY 398 (Gaillard Hunt ed., Scribner’s Sons

1906).

3

were very few visitors to the Jefferson Memorial at the time

of the dancing.” Id. ¶ 15.

A group of United States Park Police officers ordered the

dancers to disperse. Oberwetter states that she did not

immediately comply but removed a headphone from one ear

and asked Officer Hilliard “why he was ordering her to leave,

and what law she was violating.” Id. ¶ 18. Hilliard offered no

explanation, but continued to insist that she stop dancing and

leave immediately. Rather than complying, Oberwetter again

asked Hilliard to “provide a lawful reason why she needed to

do so,” but he “refused to offer any reason whatsoever for his

demands, and instead arrested [her].” Id. ¶ 19. Oberwetter

further alleges that Hilliard “used more force than was

necessary . . . , ripping apart her earbud, shoving her against a

pillar, and violently twisting her arm.” Id. ¶ 21. The Park

Police took her into custody for some five hours of

processing, after which they cited her for “[i]nterfering with

an agency function” in violation of 36 C.F.R. § 2.32

(prohibiting “[t]hreatening, resisting, intimidating, or

intentionally interfering with a government employee or agent

engaged in an official duty, or on account of the performance

of an official duty”).

Three days later, Park Police officers visited

Oberwetter’s home and gave her two superseding citations—

one for “interfering with an agency function,” and another for

“[d]emonstrating without a permit” in violation of the

National Park Service Regulations. See 36 C.F.R.

§ 7.96(g)(3)(ii)(C). On May 21, 2008, Oberwetter appeared

before the district court to defend the charges. According to

her complaint, the court found that “the prosecution . . . was

not properly before the Court and advised . . . Hilliard that if

he wished to proceed, he would have to properly prepare the

4

matter for hearing.” Compl. ¶ 25. The Park Police have not

pressed the matter since.

Oberwetter subsequently filed this suit, arguing that

Hilliard’s enforcement of the Park Service Regulations to

prohibit her expressive dancing violated her First Amendment

rights to free speech and assembly. She sought injunctive and

declaratory relief, stating that she “would again silently dance

at the Jefferson Memorial to commemorate Thomas

Jefferson’s birthday, by herself, and with other like-minded

people, but refrains from doing so because she reasonably

fears arrest, prosecution, fine, and/or incarceration if she were

to do so again.” Id. ¶ 26. She also brought three Bivens claims

for money damages against Hilliard in his personal capacity,

alleging violations of her First and Fourth Amendment rights.

The district court dismissed Oberwetter’s complaint for

failure to state a claim, holding that she was lawfully arrested

for violating the reasonable regulations that govern the

Jefferson Memorial, a nonpublic forum reserved for the

tranquil commemoration of Mr. Jefferson’s legacy.

Oberwetter v. Hilliard, 680 F. Supp. 2d 152 (D.D.C. 2010).

The court further held that Hilliard had probable cause to

make the arrest, and that he used reasonable force to subdue

Oberwetter without injury after she twice refused his lawful

orders. We take jurisdiction pursuant to 28 U.S.C. § 1291,

reviewing the district court’s dismissal de novo. See Muir v.

Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir.

2008). In reviewing a dismissal for failure to state a claim,

“we must treat the complaint’s factual allegations as true,

must grant [the] plaintiff the benefit of all reasonable

inferences from the facts alleged, and may uphold the

dismissal only if it appears beyond doubt that the plaintiff can

prove no set of facts in support of [her] claim which would

5

entitle [her] to relief.” Shea v. Rice, 409 F.3d 448, 450 n.2

(D.C. Cir. 2005) (citation omitted).

II

As a threshold matter, Oberwetter contends that the

National Park Service misread its own regulations in treating

her expressive dancing as unlawful. Ordinarily, we “accord an

agency’s interpretation of its own regulations a high level of

deference, accepting it unless it is plainly wrong.” Howmet

Corp. v. EPA, 614 F.3d 544, 549 (D.C. Cir. 2010) (internal

quotation marks omitted). Here, however, because the Park

Service’s interpretation of its regulations could lead to

criminal sanctions against Oberwetter, our deference is

constrained by the need to ensure that she had fair warning.

See United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir.

1987) (“In the criminal context, courts have traditionally

required greater clarity in draftsmanship than in civil contexts,

commensurate with the bedrock principle that in a free

country citizens who are potentially subject to criminal

sanctions should have clear notice of the behavior that may

cause sanctions to be visited upon them.”); see also Rollins

Envtl. Servs., Inc. v. EPA, 937 F.2d 649, 654 (D.C. Cir. 1991).

We are satisfied that the Regulations give fair notice that

expressive dancing is prohibited inside the Jefferson

Memorial.

The Regulations provide that, within the park areas of the

National Capital Region, “[d]emonstrations and special events

may be held only pursuant to a permit . . . .” 36 C.F.R.

§ 7.96(g)(2). “Demonstrations” include:

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

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conduct of which has the effect, intent or propensity to

draw a crowd or onlookers. [The] 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.

Id.§ 7.96(g)(1)(i).2

Oberwetter argues that her silent expressive dancing was

not a demonstration because it was not “like” the enumerated

activities of “picketing, speechmaking, marching, [or] holding

vigils or religious services.” Id. § 7.96(g)(1)(i). Unlike those

examples, she argues, her expressive dancing was not an

“organized group activity in which a uniform message is

passionately conveyed.” Appellant’s Br. 15. She further

claims that her conduct falls within the exception for “casual

park use.” Id. Dancing silently in place while listening to

headphones, she says, is something that people do in the

course of ordinary activity—waiting for the bus, standing on

the sidewalk, etc.—and does not have the “effect, intent or

propensity to draw a crowd or onlookers.” 36 C.F.R.

§ 7.96(g)(1)(i).

The district court properly rejected Oberwetter’s

arguments. Under the Park Service Regulations, a

demonstration need not be an “organized group activity,” but

may consist of “one or more persons.” Id. Oberwetter’s

expressive dancing falls within the spectrum of examples of

prohibited activities, which range from “the boisterousness of

picketing or speechmaking to the quiet solicitude of a vigil.”

2

On January 3, 2011, the Park Service issued a notice of proposed

rulemaking that “would revise the definition of demonstration at 36

C.F.R. 7.96(g)(1)(i) by eliminating the term ‘intent or propensity’

where it appears in the definition and replace it with ‘reasonably

likely.’” 76 Fed. Reg. 57, 57.

7

Oberwetter, 680 F. Supp. 2d at 161. Although silent,

Oberwetter’s dancing was a conspicuous expressive act with a

propensity to draw onlookers. True, it occurred close to

midnight on a weekend, making it less likely that a crowd

would gather. But the question is not whether her dancing was

likely to attract attention at that particular time. As with the

other prohibited activities of “picketing, speechmaking,

marching, [and] holding vigils or religious services,”

expressive dancing might not draw an audience when nobody

is around. But the conduct is nonetheless prohibited because it

stands out as a type of performance, creating its own center of

attention and distracting from the atmosphere of solemn

commemoration that the Regulations are designed to preserve.

Taking another tack, Oberwetter argues that even if she

engaged in a demonstration inside the Memorial, she was free

to do so because her group of silent dancers was never larger

than 18 people. The Regulations allow for groups of 25 or

fewer to demonstrate 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) (emphasis omitted). She

admits, as she must, that the Regulations state that “[n]o

permits may be issued authorizing demonstrations or special

events in . . . [t]he Jefferson Memorial, which means the

circular portion of the Jefferson Memorial enclosed by the

outermost series of columns, and all portions on the same

levels or above the base of these columns, except for the

official annual commemorative Jefferson birthday ceremony.”

Id. § 7.96(g)(3)(ii). But, she argues, this is not a “condition”

required for the issuance of a permit. In her view, there are no

conditions at all for the issuance of a permit for

demonstrations inside the Memorial, and so groups of 25 or

fewer must be allowed to demonstrate there.

This argument can be readily rejected. As the district

court rightly observed, the much more natural reading of the

8

Regulations is that being outside of the Memorial is a required

condition for any demonstration, meaning that, aside from the

official birthday ceremony, no demonstrations of any size are

allowed inside the Memorial.

III

The heart of Oberwetter’s complaint is her claim that the

First Amendment protects her right to engage in silent

expressive dancing inside the Jefferson Memorial.3 Because

the First Amendment “affords protection to symbolic or

expressive conduct as well as to actual speech,” Virginia v.

Black, 538 U.S. 343, 358 (2003), there is no question that she

had the right to dance in order to express her admiration for

Mr. Jefferson. Of course she did. But the question this case

presents is whether she had the right to perform her dance

inside the Jefferson Memorial.

We analyze Oberwetter’s claim under the familiar

“public forum” doctrine, which divides government property

into three categories for purposes of First Amendment

analysis. The “traditional public forum” includes public areas

that have “by long tradition or by government fiat . . . been

devoted to assembly and debate.” Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). The

government must respect the open character of these forums,

and can only impose speech restrictions that are “narrowly

tailored to serve a significant governmental interest.” Ward v.

Rock Against Racism, 491 U.S. 781, 791 (1989). Next is the

“limited public forum” or “designated public forum,” which

comprises “public property which the State has opened for

3

Because Oberwetter brings an as-applied rather than a facial

challenge, we do not address whether the Regulations could survive

a challenge on grounds of substantial overbreadth. See Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6

(2008).

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use by the public as a place for expressive activity.” Perry,

460 U.S. at 45. Expressive activity in these forums may be

restricted to particular speakers or purposes. Third is the

“nonpublic forum,” which encompasses government property

that is “not by tradition or designation a forum for public

communication.” Id. at 46. Here the government “may reserve

the forum for its intended purposes, communicative or

otherwise, as long as the regulation on speech is reasonable

and not an effort to suppress expression merely because

public officials oppose the speaker’s view.” Id. This rule

recognizes that “[t]he State, no less than a private owner of

property, has power to preserve the property under its control

for the use to which it is lawfully dedicated.” Greer v. Spock,

424 U.S. 828, 836 (1976) (quoting Adderley v. Fla., 385 U.S.

39, 47 (1966)) (internal quotation marks omitted).

“The dispositive question is not what the forum is called,

but what purpose it serves, either by tradition or specific

designation.” Boardley v. U.S. Dep’t of Interior, 615 F.3d

508, 515 (D.C. Cir. 2010). We begin by analyzing the

property in this case “at a very high level of generality,”

adopting “a working presumption that sidewalks, streets and

parks are normally to be considered public forums.”

Henderson v. Lujan, 964 F.2d 1179, 1182 (D.C. Cir. 1992).

We then examine the history and characteristics of the

particular property at issue, mindful “that when government

has dedicated property to a use inconsistent with conventional

public assembly and debate . . . then the inconsistency

precludes classification as a public forum.” Id.

The district court properly concluded that the area inside

the Jefferson Memorial is a nonpublic forum. As a general

matter, the interior space of national memorials has not

traditionally “been used for purposes of assembly,

communicating thoughts between citizens, and discussing

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public questions.” Perry, 460 U.S. at 45 (quoting Hague v.

Comm. for Indus. Org., 307 U.S. 496, 515 (1939)) (internal

quotation marks omitted). National memorials are places of

public commemoration, not freewheeling forums for open

expression, and thus the government may reserve them for

purposes that preclude expressive activity. Oberwetter points

out that the Jefferson Memorial is located within the National

Park system, and that public parks are quintessential examples

of traditional public forums. See id. Even so, we have

recognized that our country’s many national parks are too vast

and variegated to be painted with a single brush for purposes

of forum analysis. “Presumably, many national parks include

areas—even large areas, such as a vast wilderness preserve—

which never have been dedicated to free expression and

public assembly, would be clearly incompatible with such

use, and would therefore be classified as nonpublic forums.”

Boardley, 615 F.3d at 515; see also Lederman v. United

States, 291 F.3d 36, 46 (D.C. Cir. 2002) (noting that “some

areas within a large public forum may be nonpublic if their

use is specialized”) (internal quotation marks omitted); Cmty.

for Creative Non-Violence v. Watt, 703 F.2d 586, 599 n.35

(D.C. Cir. 1983) (en banc) (plurality opinion) (observing that

the Park Service “need not treat the [National Mall] as a

monolithic whole”), rev’d sub nom. on other grounds, Clark

v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984).

In creating and maintaining the Jefferson Memorial in

particular, the government has dedicated a space with a

solemn commemorative purpose that is incompatible with the

full range of free expression that is permitted in public

forums.4 Oberwetter alleges that visitors to the Memorial

4

We are mindful that forum determinations are typically fact

intensive, and that we lack a factual record here because the district

court dismissed this case on the pleadings. We press ahead

11

regularly “talk loudly, make noise, [and] take and pose for

photographs,” Compl. ¶ 10, but none of this conduct rises to

the level of a conspicuous “demonstration.” For three-and-a-

half decades, the Park Service Regulations have sought to

“protect[] legitimate security and park value interests,

including the maintenance of an atmosphere of calm,

tranquility, and reverence in the vicinity of major memorials.”

41 Fed. Reg. 12,879, 12,880 (Mar. 29, 1976). The

Regulations specifically identify the interior of the Jefferson

Memorial as a place where visitors may not engage in

expressive activity that “has the effect, intent or propensity to

draw a crowd or onlookers.” 36 C.F.R. § 7.96(g)(1)(i).

Visitors to the Memorial interior must ascend a stairway,

traverse a portico, and pass a sign that says “Quiet / Respect

Please” before entering. The Park Police patrol the area, and

Oberwetter has pled no facts suggesting that they allow

visitors to engage in disruptive demonstrations. Having thus

created and maintained the Memorial as a commemorative

site, the government is under no obligation to open it up as a

stage for the roving dance troupes of the world—even those

celebrating Mr. Jefferson.

That the Memorial is open to the public does not alter its

status as a nonpublic forum. Visitors are not invited for

expressive purposes, but are free to enter only if they abide by

the rules that preserve the Memorial’s solemn atmosphere. As

the Supreme Court has observed, an area “is not transformed

into ‘public forum’ property merely because the public is

permitted to freely enter and leave the grounds at practically

all times.” United States v. Grace, 461 U.S. 171, 178 (1983).

The government conducts an official ceremony for Jefferson’s

nonetheless because the salient features of the Memorial are

“generally known within [our] territorial jurisdiction” and “not

subject to reasonable dispute.” Fed. R. Evid. 201(b).

12

birthday inside the Memorial each year, but this is an instance

of government speech rather than an open invitation for

private speakers. It is of no moment that the Memorial was

built in 1943 but not regulated by the Park Service until 1976.

Oberwetter has made no allegation that the Memorial was

either a traditional public forum or designated public forum

before the Park Service’s regulation, see Oberwetter, 680 F.

Supp. 2d at 163, and we have made clear that a piece of

government property is not automatically a public forum

“merely because the government has for a time stayed its

hand” in imposing restrictions. Henderson, 964 F.2d at 1183.

Nor is this case like Grace, where the Supreme Court

held that the grounds surrounding the Supreme Court building

could not be deemed a nonpublic forum because there was

“no separation, no fence, and no indication whatever to

persons stepping from the street . . . that they [had] entered

some special type of enclave.” 461 U.S. at 179. The physical

characteristics of the Jefferson Memorial clearly delineate the

nonpublic forum. The ceiling dome sits atop a circular

colonnade, marking out a distinct memorial space. The clear

boundaries of the Memorial also distinguish it from the

restricted-speech zone in Henderson, which we struck down

in part because it extended far beyond the Vietnam Veterans

Memorial and encompassed public lawns and sidewalks that

appeared “indistinguishable from ordinary sidewalks used for

the full gamut of urban walking.” 964 F.2d at 1182.

Having determined that the Jefferson Memorial is a

nonpublic forum, we have little trouble concluding that the

Park Service Regulations are “viewpoint neutral and

reasonable in light of the purpose [of] the forum.” Marlin v.

D.C. Bd. of Elections and Ethics, 236 F.3d 716, 719 (D.C.

Cir. 2001) (citation and quotation marks omitted). The

Regulations plainly do not discriminate on the basis of

13

viewpoint, but rather prohibit disruptive speech regardless of

its message. Oberwetter argues that the government engages

in viewpoint discrimination by hosting its own official

birthday ceremony in the Memorial while excluding her

celebratory dance. This argument fails because the

government is free to establish venues for the exclusive

expression of its own viewpoint. See Pleasant Grove v.

Summum, 555 U.S. 460 (2009) (holding that when the

government erects a monument on public property, it is not

obligated to allow other monuments expressing alternative

viewpoints); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550,

553 (2005) (“[T]he Government’s own speech . . . is exempt

from First Amendment scrutiny.”). It would be strange indeed

to hold that the government may not favor its own expression

inside the Jefferson Memorial, which was built by the

government for the precise purpose of promoting a particular

viewpoint about Jefferson.

We have noted previously that the Park Service has a

substantial interest in promoting a tranquil environment at our

national memorials. See Henderson, 964 F.2d at 1184 (“Th[e]

interest in maintaining a tranquil mood at the [Vietnam]

Memorial wall is similar to ones that the Supreme Court and

this court have recognized as substantial.”). Here the

government has reasonably advanced its interest in tranquility

because, unlike in Henderson, the restriction on expressive

activity does not sweep beyond the actual Memorial space.

Outside the Jefferson Memorial, of course, Oberwetter and

her friends have always been free to dance to their hearts’

content.

IV

Finally, we turn to Oberwetter’s claims against Officer

Hilliard under Bivens v. Six Unknown Named Agents, 403

14

U.S. 388 (1971). Oberwetter alleges that Hilliard personally

violated her First and Fourth Amendment rights by infringing

her right to free expression, arresting her without probable

cause, and subjecting her to excessive force. “Although

government officials may be sued in their individual

capacities for damages under Bivens, qualified immunity

protects officials from liability ‘insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Atherton

v. District of Columbia, 567 F.3d 672, 689 (D.C. Cir. 2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In

evaluating a claim of qualified immunity, we first “determine

whether the plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, proceed to determine

whether that right was clearly established at the time of

violation.” Stewart v. Evans, 351 F.3d 1239, 1243 (D.C. Cir.

2003) (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)).

Hilliard’s alleged conduct did not violate Oberwetter’s

clearly established constitutional rights. She had no First

Amendment right to stage an unlawful performance inside the

Jefferson Memorial, and in doing so created the cause for her

own arrest. She alleges that Hilliard acted out of malice,

arresting her for no good reason after she questioned his

authority. But in fact her arrest was prompted not merely by

her questioning Hilliard, but rather by her failure to comply

with his lawful order during the course of her unlawful

conduct. In any event, Hilliard’s motive would not affect the

existence of probable cause, which depends “on an objective

assessment of the officer’s actions in light of the facts and

circumstances confronting him at the time . . . and not on the

officer’s actual state of mind at the time the challenged action

was taken.” Maryland v. Macon, 472 U.S. 463, 470-71

(1985). Hilliard was objectively justified in arresting

Oberwetter because he observed her breaking the law.

15

Oberwetter’s remaining Bivens claim is that Hilliard

violated the Fourth Amendment by using excessive force

when he pulled her arm behind her back and pushed her up

against a stone column during her arrest. In general, police

officers have authority to use “some degree of physical

coercion” when subduing a suspect, Graham v. Connor, 490

U.S. 386, 396 (1989), as long as the amount of force used is

reasonable. In Judge Friendly’s famous formulation, “Not

every push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers, violates a prisoner’s

constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir. 1973). We determine the reasonableness of force

based on “the facts and circumstances of [the] particular case,

including the severity of the crime at issue, whether the

suspect pose[d] an immediate threat to the safety of the

officers or others, and whether [s]he [wa]s actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396. “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to

make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Id. at 396-97.

Thus, for Oberwetter’s claim to prevail, “the excessiveness of

the force [must be] so apparent that no reasonable officer

could have believed in the lawfulness of his actions.”

Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993).

Although Oberwetter’s alleged violation was far from

“sever[e],” her complaint nonetheless makes clear that Officer

Hilliard’s use of force was not excessive. Most instructive on

this point is Wasserman v. Rodacker, 557 F.3d 635 (D.C. Cir.

2009), where a man was forcibly arrested after refusing a

police officer’s request to stop and answer some questions

while walking his dog in violation of a leash law. Although

16

the man eventually stopped and “was not moving or offering

any resistance,” the officer “forcefully pressed upwards on

[his] arm before handcuffing him, causing him pain.” Id. at

641. The court held that the use of force was reasonable

because the man’s “refusal to obey [the officer’s] order prior

to his arrest suggested that he might try to resist or escape.”

Id. The court also found it significant that the man “suffered

no bruise or injury, which tends to confirm that [the officer]

did not use more force than reasonably appeared necessary to

secure [his] compliance.” Id. (internal quotation marks

omitted).

The same factors are dispositive in the present case.

Oberwetter admits in her complaint that before she was

arrested she twice refused Hilliard’s order to stop dancing and

leave the Memorial. She also admits that she was

accompanied by a group of 17 other people at the time, which

in our view could have caused Hilliard to be reasonably

worried that events might get out of hand. This is especially

true given the lateness of the hour and the unusual activity of

the crowd, whose intentions he did not know. Under such

circumstances it was not clearly unreasonable for Hilliard to

take decisive action to subdue Oberwetter quickly and

forcefully, thereby reducing the risk of interference or escape.

Given that some force may have appeared reasonably

necessary, Hilliard’s alleged actions were not markedly

different from what we would expect in the course of a

routine arrest. As in Wasserman, the fact that Hilliard did not

cause Oberwetter any serious bodily injury tends to confirm

that the use of force was not excessive. See also Wardlaw, 1

F.3d at 1304 & n.7 (noting that while the absence of a severe

injury “is not by itself the basis for deciding whether the force

used was excessive, it does provide some indication” that the

degree of force was reasonable).

17

In light of these considerations, we agree with the district

court that Oberwetter’s complaint has failed to state a

sufficient claim that Hilliard’s actions were beyond the pale

of reasonableness as established by our case law.

V

The judgment of the district court is

Affirmed.