Oberwetter v. Hilliard
395 U.S. App. D.C. 52
| D.C. Cir. | 2011Background
- Oberwetter and 17 friends danced silently inside the Jefferson Memorial late at night to celebrate Thomas Jefferson's birthday.
- Park Police ordered them to disperse; Oberwetter was arrested after asking for a lawful reason for the order and resisting multiple lawful commands.
- She was detained for about five hours and cited for interfering with an agency function; later a second set of citations were issued for demonstrating without a permit.
- District court dismissed her civil suit, finding the conduct within a nonpublic forum and the arrest reasonable and the force used not excessive; Oberwetter appealed.
- Oberwetter asserted First and Fourth Amendment violations (speech/assembly and excessive force) and sued Officer Hilliard personally under Bivens claims.
- The court treated the Park Service interior as a nonpublic forum and reviewed the Bivens claims through qualified immunity analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether silent expressive dancing inside the Jefferson Memorial is a demonstration under the Park Regulations | Oberwetter contends dancing is not a 'demonstration' as regulated. | Hilliard argues dancing inside the Memorial falls within demonstrations prohibiting expression without a permit. | Dancing falls within prohibited demonstrations under 36 C.F.R. § 7.96(g)(1)(i). |
| Whether the Jefferson Memorial interior is a nonpublic forum for First Amendment purposes | Memorial should be a traditional or designated public forum for expressive activity. | Memorial interior is a nonpublic forum suitable for restrictions to preserve solemn atmosphere. | Memorial interior is a nonpublic forum; restrictions are viewpoint-neutral and reasonable. |
| Whether the Park Service Regulations provide fair notice or run afoul of constitutional standards | Regulations may overbreadth or lack clear notice for expressive conduct. | Regulations sufficiently inform that demonstrations inside are restricted. | Regulations provide fair notice; enforcement consistent with nonpublic-forum status. |
| Whether Hilliard's actions violated Oberwetter's First Amendment rights or were protected by qualified immunity | Arrest and force were unconstitutional punitive acts for expressive dancing. | Arrest was for a legitimate regulation violation; qualified immunity applies. | Arrest lawful; no clearly established First Amendment violation; qualified immunity applies. |
| Whether Hilliard's use of force during arrest was excessive under Fourth Amendment standards | Force used was excessive for quiet demonstrators. | Force was reasonable given crowd dynamics and risk of interference. | Force not excessive under Graham factors; conduct within reasonableness. |
Key Cases Cited
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 464 U.S. 793 (U.S. Supreme Court 1983) (public forum analysis framework)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. Supreme Court 1989) (narrowly tailored restrictions in traditional forums)
- Boardley v. U.S. Dep't of Interior, 615 F.3d 508 (D.C. Cir. 2010) (forum analysis within national parks; nonpublic vs public forum)
- Henderson v. Lujan, 964 F.2d 1179 (D.C. Cir. 1992) (natural public forum presumptions; space dedication)
- United States v. Grace, 461 U.S. 171 (U.S. Supreme Court 1983) (public-entry grounds not automatically public forum)
- Marlin v. D.C. Bd. of Elections and Ethics, 236 F.3d 716 (D.C. Cir. 2001) (viewpoint neutrality and forum purposes)
- Pleasant Grove v. Summum, 555 U.S. 460 (U.S. Supreme Court 2009) (government speech exemption from First Amendment scrutiny)
- Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (U.S. Supreme Court 2005) (government's own speech not subject to First Amendment scrutiny)
- McGoff v. United States, 831 F.2d 1071 (D.C. Cir. 1987) (criminal standards in agency interpretations)
- Wasserman v. Rodacker, 557 F.3d 635 (D.C. Cir. 2009) (reasonableness of police force in restraint context)
- Wardlaw v. Pickett, 1 F.3d 1297 (D.C. Cir. 1993) (reasonableness of force analysis and injuries)
- Maryland v. Macon, 472 U.S. 463 (U.S. Supreme Court 1985) (probable cause standard for arrest decisions)
- Graham v. Connor, 490 U.S. 386 (U.S. Supreme Court 1989) (reasonableness of force in arrests)
- Grace, 461 U.S. 171 (U.S. Supreme Court 1983) (public forum status not created by mere openness)
- Wilson v. Layne, 526 U.S. 603 (U.S. Supreme Court 1999) (police actions and constitutional rights in context)
- McGoff, 831 F.2d 1071 (D.C. Cir. 1987) (criminal context and notice principles)