# Michael A. Kroll v. United States Capitol Police

> Court of Appeals for the D.C. Circuit · June 21, 1988 · 847 F.2d 899

URL: https://www.frixlaw.com/law-library/cases/9477697

## Case

- **Full name:** Michael A. KROLL v. UNITED STATES CAPITOL POLICE, Et Al., Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 21, 1988
- **Citations:** 847 F.2d 899; 270 U.S. App. D.C. 136; 1988 WL 56893
- **Precedential status:** Published
- **Opinion:** Concurrence by Robinson
- **Judges:** III, Robinson, Mikva, Starr
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477697

## How later opinions describe it (automated extraction)

- explaining that “defendant’s entitlement to qualified immunity raises only a narrow question”

## Opinion text

*905 SPOTTSWOOD W. ROBINSON, III, Circuit Judge,
concurring in the judgment:
I agree that the principles enunciated in Harlow v. Fitzgerald 1 and its progeny, including particularly Anderson v. Creighton, 2 entitled appellants to qualified immunity from civil damages consequent upon any constitutional transgression born of Kroll’s arrest. I am satisfied that notwithstanding the true fact, 3 a Capitol police officer could reasonably have believed that Senate Resolution 342 4 was tantamount to a formal permit to display signs welcoming and applauding the Olympic Torch Relay Team, while Kroll, whose sign could hardly have been so interpreted, was demonstrating without a permit. I also share my colleagues’ concern that, if possible, this appeal be disposed of on the narrow but self-sufficient ground of immunity, and I would leave the troubling constitutional questions engendered by the parties’ positions for resolution in a case squarely posing them as essential issues. 5
I hasten, however, to add my conviction that while in 1980 Capitol policemen might reasonably have equated the resolution with a permit to welcome and honor the Torch Relay Team more tangibly and enthusiastically than mere presence would, close inspection of the resolution reveals that it did not actually authorize anyone to demonstrate. In unmistakable language, the resolution purported to do no more than call for the welcoming ceremony and invite the public to attend. 6 Moreover, treatment of the resolution as a permit to demonstrate erroneously attributed a constitutionally-questionable act to the Senate: allowing those supporting the 1980 Winter Olympics to express themselves, while banning those who would expound a contrary point of view. 7 Mere sponsorship of the ceremony was no indication that the Senate designed the resolution as the equivalent of a content-neutral permit system, in which the speed with which one applies, rather than one’s message, determines whether a particular permit is to issue. 8 Nor did the *906 Senate’s bare sponsorship reflect an intention to provide a forum exclusively for those wishing to demonstrate their allegiance to that body’s policy toward the 1980 Winter Olympics.
Despite these guideposts and the significance they bear for lawyers and judges, qualified immunity remains the pivotal issue on this appeal. Of decisional importance is not what Senate Resolution 342 did or did not do, but what the involved policemen reasonably thought in that regard. The doctrine of qualified immunity rests on the inevitability that public officials performing discretionary functions will sometimes reach mistaken but reasonable conclusions, and that these must be tolerated in the interest of vigorous and effective discharge of their duties. 9 Particularly with regard to legal conclusions, lay officers obviously cannot be expected to perform at the level achievable by those trained in the law. These immutable facts easily explain why there could be a difference between the real import of the Senate’s resolution and the construction the Capitol police officers placed upon it.
The relevant jurisprudence is straightforward. “[G]ovemment officials performing discretionary functions[ ] generally 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 should have known.” 10 Put another way, “whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, ... assessed in the light of the legal rules that were ‘clearly established’ at the time it was taken....” 11 Very importantly,
the right the official is alleged to have violated must have been “clearly established” in a ... particularized ... sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of preexisting law the unlawfulness must be apparent. 12
I cannot say that in the ambiguous circumstances presented here it was.
. 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982).
. — U.S. —, 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987).
. See notes 6-8 infra and accompanying text.
. S.Res. 342, 96th Cong., 2d Sess., 126 Cong.Rec. 1131 (1980).
. Two fundamental considerations persuade me to this course of action. First, questions of qualified immunity are to be decided at the earliest possible stage of a litigation. Anderson v. Creighton, supra note 2, — U.S. at —, 107 S.Ct. at 3038 , 97 L.Ed.2d at 530 ; Harlow v. Fitzgerald, supra note 1 , 457 U.S. at 818 , 102 S.Ct. at 2738 , 73 L.Ed.2d at 410 . Second, a federal court should not decide a constitutional question when a dispositive nonconstitutional issue is present. E.g., Jean v. Nelson, 472 U.S. 846, 854 , 105 S.Ct. 2992, 2997 , 86 L.Ed.2d 664, 671 (1985); New York City Transit Auth. v. Beazer, 440 U.S. 568, 582 , 99 S.Ct. 1355, 1364 , 59 L.Ed.2d 587, 600 (1979).
. In relevant part, the resolution provided simply "[t]hat the 1980 Winter Olympics Torch Relay Team shall be honored by a welcoming ceremony on the steps of the United States Capitol Building on February 1, 1980," and that "such ceremony shall be open to the public and arranged not to interfere with the needs of Congress, under conditions to be provided by the Capitol Police Board." S.Res. 342, 96th Cong., 2d Sess., 126 Cong.Rec. 1131 (1980).
. See, e.g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 , 104 S.Ct. 2118, 2128 , 80 L.Ed.2d 772, 786 (1984) ("the First Amendment forbids the government to regulate speech in favor of some viewpoints or ideas at the expense of others”); Police Dep’t of Chicago v. Mosley, 408 U.S. 92 , 95, 92 S.Ct. 2286, 2290 , 33 L.Ed.2d 212, 216 (1972) ("above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content”).
. See Women Strike for Peace v. Morton, 153 U.S.App.D.C. 198, 216 , 472 F.2d 1273, 1291 (1972) (concurring opinion) ("governmental approval of ... ideas ... can play no role in a constitutional licensing system”).
. See Harlow v. Fitzgerald, supra note 1 , 457 U.S. at 806 , 102 S.Ct. at 2732 , 73 L.Ed.2d at 403 ; Nixon v. Fitzgerald, 457 U.S. 731, 744-745 , 102 S.Ct. 2690, 2698 , 73 L.Ed.2d 349, 360 (1982).
. Harlow v. Fitzgerald, supra note 1, 457 U.S. at 818, 102 S.Ct. at 2738, 73 L.Ed.2d at 410 (citations omitted).
.Anderson v. Creighton, supra note 2, — U.S. at —, 107 S.Ct. at 3038 , 97 L.Ed.2d at 530 (quoting Harlow v. Fitzgerald, supra note 1, 457 U.S. at 819, 818, 102 S.Ct. at 2739, 2738, 73 L.Ed.2d at 411, 410) (citations omitted).
. Anderson v. Creighton, supra note 2, — U.S. at —, 107 S.Ct. at 3039 , 97 L.Ed.2d at 531 (citations omitted).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477697. Public record. Not legal advice.