Honorable Ronald v. Dellums v. James M. Powell, Chief, United States Capitol Police, Jerry v. Wilson, Chief, Metropolitan Police Department

mistakenly If the IRS government. foreign valid for a tax deny application

credit, be side would equation one mis- if the IRS were Similarly,

violated. credit, tax

takenly grant foreign violated on the other

equation essentially position. This is Field’s

side. in tax parity

He claims that his interests import foreign

with his who oil competitors implicit 901(b) the structure § arguably his interests are therefore protected the zone to be

within of interests the section. history 901(b) is silent legislative § congressional concern those in

about readily circumstances. The foresee-

Field’s foreign tax credit consequences

able however, situation, competitive Field’s support posi- for his claim. His

powerful indistinguishable from that

tion travel Arnold Tours

plaintiff agents companies investment plaintiff I there-

in Investment Co.Institute. would grant Field. standing appellant

fore al. V. et

Honorable Ronald DELLUMS -, also, U.S.App.D.C. See -, U.S.App.D.C. and 184 F.2d POWELL, Chief, United States M. James F.2d 231. Police, Appellant, Chief, Jerry Wilson, Metropolitan V. Department, et al.

Police 75-1974.

No. Appeals,

United Court States

District of Circuit. Columbia

Argued Jan. 4, 1977. Aug.

Decided Nov.

Rehearing Denied in a civil to arrest and

engaged conspiracy the purpose with detain class members right frustrating their First Amendment Liability was against to the war. protest Justice, Linder, Dept, of Atty., Dennis G. “First, Fourth, Fifth, under the asserted Lee, Rex E. C.,D. with whom Washington, Sixth, the Con- Eighth and Amendments Gen., Kopp and Robert E. Atty. Asst. States; the Civil stitution of United Justice, Anderson, Attys., Dept, of J. David et Act, seq.; Rights §§ U.S.C. briefs, C., for D. were on the Washington, Columbia,” and law of the District of appellant. in excess of alleged be damages were C.,D. Washington, Kaplan, K. Warren and class mem- $10,000 plaintiff for each Mirel, Ralph J. Lawrence H. with whom ber.2 McReynolds, Kenneth Mary Temple, A. plain- that the class stated complaint C., on D. Handal, Washington, V. 2,000 persons on some tiffs had met with brief, appellees. Capitol the United the Mall near States 5,1971. At that early afternoon of WRIGHT, LEVEN- TAMM and Before plans protest against made meeting THAL, Judges. Circuit by staging public war in Vietnam by court filed J. Opinion for the SKELLY meeting Congressman at the with Capitol, WRIGHT, Judge. Circuit Congress Dellums and other Members and to address the assem- attendance Concurring by filed LEVEN- opinion protestors. agreement bled Pursuant THAL, Judge. Circuit officials, police those assembled on the TAMM, Dissenting filed Cir- opinion groups three abreast in of 21 Mall walked Judge. cuit their on the Mall to the meeting place from Grounds, signals traffic obeying WRIGHT, Judge: Circuit J. SKELLY along officers the directions 11, 1971 this suit was On November At way. the leaders were District Court brought in the United States Capitol Police, stopped by an officer individually and Dellums Congressman were allowed to enter the Grounds but seeking represent class persons nine appeared Congressman Dellums when steps persons all arrested on .arrangements meeting explained 5,May 1971 while Capitol on United States Capitol steps. against in a the war in engaged protest assembled on the group subsequently in- named as defendants Vietnam. Persons steps on the House side East the United States cluded various officials of “began to make and to listen to and of and the of the District Columbia speeches concerning People’s Peace predicated on an itself.1 was District Suit While Con- Treaty and related matters.”3 allegation that the defendant officials had interposed privilege filed, following of complaint claim dent Nixon 1. As named the Powell, discovery elucidating against M. of the aimed at certain defendants: James Chief Wilson, Police; Jerry challenged V. in events United States Mitchell’s involvement Metropolitan Powell, generally of suit. See Dellums v. Chief of District Columbia in this Hardy, (1977), Department; Di- U.S.App.D.C. Police Kenneth L. 561 F.2d 242 Department April of rector of the District Columbia 1977. modified order of Columbia; Corrections; of John of the District Mitchell, Attorney United N. General complaint Complaint 29. JA The also ¶ Kleindienst, States; Deputy Attorney Richard declaratory expungement prayed relief and for Wilson, States; As- of the United Will General arrest records. These claims were mooted of Attorney the United States sistant General of granted Murphy, the relief in Sullivan v. charge Claims of Division. the Criminal (D.D.C.1974). F.Supp. 867 Hardy against and Will Wilson were Kenneth against during pretrial. The claim dismissed Complaint JA 33. ¶ Presi- severed when former John Mitchell was Abzug addressing gresswoman persons defined class as “all who were crowd, P.M., police while at 3:30 cor- arrested assembled on the Capitol about steps May This steps, prevent- doned off the bottom of the 1971.”4 action came trial jury on for before a leaving, began December 1974. ing anyone from arrest- trial, evidence ap- adduced at as shall ing assemblage. members Arrests below, more pear fully was in conflict and Congressman protests continued over the of provided support for the contentions in both Congress, Dellums and other Members of complaint and the answer. At the close and the refused Dellums’ offer to plaintiffs’ again case and at the close persuade crowd to disperse. evidence, remaining all the the defendants complaint alleged further that those Deputy Attorney in the General case5 — held for from periods arrested were sev- Kleindienst, United Police States eral hours to several days being without Powell, James M. Chief District of Colum- process addition; afforded due of law. In Wilson, bia Police Chief V. Jerry and the conditions of detention were said to have District of Columbia —each moved for a di- been in that inhumane there severe rected verdict. Deputy Attorney General sanitation, inadequate overcrowding, inade- granted; Kleindienst’s motion was all oth- quate filthy bedding," food, insufficient case ers denied. The was submitted - attorneys no medical care. Access jury and substantial verdicts were and telephones was said been to have de- returned, as margin.6 indicated in the severely nied or restricted. Chiefs Powell and and the District Wilson answer defendants de- generally prosecuted appeals of Columbia each from nied that the Capitol the demonstration at judgment jury entered below on the peaceful been and in with appli- accord plaintiffs verdicts. The below have also They cable law. probable asserted cause appealed the directed verdict favor for the made arrests Deputy Attorney General Kleindienst. Fi- official from immunity prosecution. The nally, Powell and the District have District of municipal Columbia raised its appealed from an reinstating order to this defense immunity as a and further claimed three plaintiffs action named who were dis- the individual defendants were at all failing missed before trial comply times the servants the United States. with discovery requests. These appeals All defendants denied that conditions of however, argument; consolidated for detention had been inhumane. we have found convenient to sepa- write period pretrial practice After a motion in each. rately Accordingly, we will take the trial court discovery, certified this up appeal Chief Powell’s from judg- suit as a class action in May opinion; and ment below in this the points 25, 1973, (3) detention, $960; 4. Order of 85. The court also JA for 24 to 48 hours of provide (4) detention, $1,800. ordered defendants to infor “whatever for 48 to 72 hours identity mation have on the of class mem For B. Violation of First Amendment bers,” id, so that notice could be afforded the Rights: 23(c), $7,500 class. See Rule Fed.R.Civ.P. Defend $7,500 for each class member and notice, pay ants were ordered to cost Congressman Dellums. practice inappropri has since been ruled For C. Cruel and Unusual Punishment: Court, Supreme ate see Eisen Carlisle plaintiff $500 for each member of the class. Jacquelin, & 94 S.Ct. D. For Malicious Prosecution: (1974), L.Ed.2d 732 but which constitutes $3,000 (1) eight persons for each of who harmless in the error context of this suit. trial; were defendants criminal (2) $50 for all other class members. supra. 5. See note 1 judgment punish- for and cruel unusual against was ment rendered the District of Co- damages jury 6. The awarded are as jointly lumbia alone. All other awards run and follows: severally Powell, Wilson, against defendants Imprison- A. For Arrest False and False summary and District of For Columbia. a ment: appeal, of results of this see note 89 infra. (1) detention, $120; for 12 hours or less of (2) detention, $360; for 12 to 24 hours of

175 fact, of lawful. former issue and the District is one of by Chief Wilson raised subject jury. opinion potentially be the Under law of will Columbia 75-1975; Columbia, plaintiffs’ appeal the District of in No. unlawfulness 75-2117; objec- presumed allega- in and of a detention is once “an by order No. treated certain named the reinstatement of tion that a was plaintiff arrested tions made] [is opinion in discussed in an imprisoned process.” will be and without Clarke v. plaintiffs 76-1419. Columbia, 76-1418 & 508, Nos. District of 311 A.2d 511 The burden then shifts to (D.C.App.1973). to the class Powell was held liable Id.; justify the defendant the arrest. arrest, law false for common false plaintiffs 547, accord, e.g., Ray, v. Pierson prosecution and malicious imprisonment, 556-557, 1213, 87 18 S.Ct. L.Ed.2d 288 on violations claim based and a Bivens7 (1967); Director General of Railroads v. Amendments. First and Fourth Kastenbaum, 27, 52, 263 44 68 U.S. S.Ct. Congressman addition, liable to he was held (1923); see, e.g., L.Ed. 146 Restatement on the Bivens claim based Dellums a (Second) (especially of Torts 10 comment §§ begin by discussing We First Amendment. c), (1965). Justification can be estab- false surrounding the a of issues cluster by showing probable lished that there was Amend- imprisonment-Fourth arrest-false plaintiff cause for arrest re- hereafter be (which ment claim shall grounds charged. E.g., Shaw v. De arrest), then and simply false ferred Co., partment (D.C. Stores 268 A.2d concerning liability points consider raised App.1970). showing A lesser can also be and of the class prosecution for malicious made, namely arresting that the had officer class liability to both the First Amendment grounds reasonable to believe crime Congressman Dellums. and plaintiff’s been committed and that arrest ARREST, IMPRISON- I. FALSE FALSE purpose securing made for MENT, AMENDMENT FOURTH (i.e., of the law administration the offi-

VIOLATION faith). cer in Wade v. Dis- good acted See Columbia, trict of 310 A.2d 862-863 in The tort action false arrest (en banc), citing Pierson v. (D.C.App.1973) var law and constitutional both its common Ray, Unknown supra; Bivens v. Six Named the interest protects iants vindicates Narcotics, Federal Bureau of Agents of the interference freedom from unwarranted 1972); (2d 1347-1348 Cir. F.2d personal liberty. point The focal Rowland, (4th Hill v. 474 F.2d ar question the action is the whether the Restatement, 1973). supra, also Cir. See justified ordering officer was resting 121, 127. §§ so, arrest of the if the conduct plaintiff; and the arresting privileged officer is - The mechanics of pleading fails. While the central issue of-the action proof in Bivens action for arrest are false stated, simply parties action judgment our identical those sketched divergent somewhat views on mechan Although we know of no case delin above. ics thе allocation of the burden pleading, parameters prima eating facie case elements' of scope and the proof, theory, under a Bivens false arrest Pierson arrest action. defenses available in false supra, v. indicates that the details of Ray, reason, analysis, to aid later For this shaped constitutional tort actions should we features of both now sketch salient law. parallel reference common law constitutional action. the common 556-557, See 386 U.S. at 87 S.Ct. 1213. The suing at common law rule plaintiff recognized A the District an alle imprisr gation imprisonment he has suffered an of arrest and without must show that un- imprisonment and that the warrant shifts to defendant the burden onment Narcotics, Agents Six Named of the Federal Bivens Unknown Bureau of (1971). L.Ed.2d 176 is the rule was on justifying majority the arrest Chief Powell to show that the proof we see country'8 this and no identifiable 5May privileged. arrests were by adopting that would be served purpose Thus the trial only issue for stringent more definition of a different or good whether Chief Powell acted in faith in in constitutional

prima litigation.9 facie case arresting plaintiffs and whether his actions point, On a different there can be no doubt the circum light reasonable in of all that state and federal officers sued Supreme stances. The has delineated Court Bivens, 1983 respectively, under Section be made in considerations which must them a qualified available to immuni- resolving this issue: defense, ty privilege based on faith good grounds It is the existence of reasonable reasonableness, but that the burden is for action exist- cause belief on the defendant prove officers to it.10 See [that light at time and in of all formed Pierson Ray, supra, 555-557, v. 386 at ed] U.S. circumstances, 1213; coupled good- with 87 S.Ct. Bivens v. Unknown Six belief, Federa] faith for quali- affords basis Agents Named Bureau of * * * immunity. fied Narcotics, 1347-1348; supra, 456 F.2d at Rowland, supra, Hill v. 474 F.2d at 1377- Rhodes, supra, Scheuer v. 416 at 247- U.S. 1378; v. Perrigan, 81, Jones 459 F.2d 83 248, 94 good S.Ct. 1683-1692. To establish (6th 1972); Wilson, Cir. v. Shifrin 412 faith an official must show that he was 1282, F.Supp. (D.D.C.1976); 1294-1295 cf. “acting sincerely and with a belief that he * * Rhodes, 232, Scheuer v. 416 94 U.S. doing is *.” right Wood v. Strick 1683, 40 (1974); L.Ed.2d 90 McSurely v. land, 308, 321, 992, 1000, 43 420 U.S. 95 S.Ct. McClellan, 1277, 553 F.2d 1291 n.50 (1976) (1975). L.Ed.2d 214 In establishing the rea- (en banc); Mitchell, Zweibon v. 170 U.S. policemen sonableness of an arrest are enti- 1, App.D.C. 77-78, 594, 516 F.2d 670-671 tled to show reliance “on traditional sources (1975) (en banc), denied, cert 944, 425 U.S. for the factual information on which 1685, 96 S.Ct. 48 L.Ed.2d (1976); Apton 187 act,” Rhodes, decide and supra, v. Scheuer Wilson, v. U.S.App.D.C. 22, 29-33, 165 506 246, 1691, 416 at U.S. 94 although S.Ct. at 83, F.2d (1974). 90-94 proposition tempered must be understanding the instant that warrantless arrests for undisputed case (as here) members of the misdemeanors are authorized plaintiff class were arrested without a- statute only place warrant-. where a violation takes "Thus the un lawfulness the presence plaintiffs’ arresting officer. subsequent and See admitted imprisonment presumed 23 581(a)(1)(B) (1973).11 as' a D.C.Code Final- § matter of law contrary ly, policemen are not and, “charged predict- assertion Powell, plaintiffs ing law,” the future course of constitutional Re quired to demonstrate that 557, Chief Powell Pierson v. Ray, supra, 386 at 87 acted probable without cause. For the rea S.Ct. at but at the same time an above, sons set out judge trial also arrest may “justified not be by ignorance or * correctly determined that the burden of disregard settled, indisputable law *.” See, e.g., Reagh, Cal.App.2d Moreover, Muller v. plaintiffs expected since can be Cal.Rptr. (1963), plead pendent cases common law false arrest as a therein; Liberty cited Wehrman v. suits, Petroleum claim in constitutional different rules Co., (Mo.App.1964), 382 S.W.2d merely lead to confusion. therein; Broughton York, cases cited v. New 451, 458, 87, 94-95, N.Y.2d 373 N.Y.S.2d course, showing probable 10. Of cause denied, Schanbarger N.E.2d 315 cert. would also defeat a Bivens action for false Kellogg, 96 S.Ct. 46 L.Ed.2d arrest. See U.S.Const. Amend. IV. (1975), therein; cited cases 32 Am. Imprisonment (1967) Jur.2d False § 95 difficulty 11. For this reason we have some therein; Impris and cases cited 35 C.J.S. False understanding why places the dissent so much (1960) onment 55 at 734 § and cases cited emphasis place on events that did not take therein. presence of Chief Powell.

177 his favor because the Strickland, 321, directed in evidence supra, at v. Wood the overwhelmingly plaintiffs shows that Particularizing these at 1000. 95 S.Ct. Capitol in of the were violation Grounds case, Powell present to Chief the standards statute, (1973),12 at the 9 D.C.Code 124 § that had an honest belief show that he must Plaintiffs arrests.13 answer time of their violating group as a the plaintiffs the that argument by contending the evi- this and, the fur- assembling at by law light in the most favorable to dence taken lignc ther, this was reasonable that belief that support finding a them would Chief the scene of facts to him at the available of reasonably have believed Powell could law it then existed. of the as the arrests and 124 definitively 9 as con- D.C.Code § Verdict A. Directed Nicholson, strued in United States v. Nos. a l. 20210-69A et (D.C. fact Notwithstanding the Ct. Gen.Sess. June aff’d, 19, 1969), 263 56 (D.C.App.1970) A.2d persuasion the burden of Chief Powell has parties agree —which all controls this immunity, official qualified on the issue of by case14 —was violated the activities of have been a verdict should argues he clearly stand, theory parade, or move in Powell’s is incorrect to Chief It is forbidden assemblages acquittal processions United since a motion for directed verdict of or [the] Grounds, display sufficiency or to therein States any flag, tests the evi- the Government’s banner, adapt- designed conviction, device or or dence trial to sustain a whereas at any party, bring public or- by to into notice question immunity ed qualified raised movement, except ganization, as herein- or defense is whether the facts available to Chief provided in and 9-129. after sections 9-128 5,May Powell at support the scene on would provides: § 9 D.C.Code a conclusion that there were reasona- observance grounds order to admit the due supposing probable for ble cause States Grounds of Rhodes, within United See arrest existed. Scheuer becoming interest occasions cognizance national 247-248, 40 L.Ed.2d Congress, entertainment of and York, (1974); Broughton supra v. New Speaker the Senate and the President of 455-458, note at 373 N.Y.S.2d at 37 N.Y.2d acting Representatives, con- the House of of currently, 92-95, Moreover, 335 N.E.2d 313-315. be- hereby suspend to authorized are trial never cause the record criminal was proper much of the occasions so for such prohibitions 9-124, evidence, although it into was avail- introduced 9-119 to sections contained judge able in pressly courtroom the trial ex- prevent the use of roads would evidence, accept to it into Tr. offered grounds by processions walks the said impossible it to JA is determine upon assemblages, them of use whether at trial the evidence introduced addresses, decorations, music, suitable fact that would have been available to material arrangements are ceremonies: Provided [that at the scenе. Chief Powell decorum], ensuring order and made There are a number of other difficulties with provides: § 129 9 D.C.Code importantly theory, that Chief most Powell Washington of either In the from absence 8(c), steps preserve no to took Fed.R.Civ.P., below. Rule 9-128, designated in section of the officers explicit: pleading pre- “In to a given suspend authority therein cer- ceding pleading, party shall set forth affirma- 9-118, prohibitions of sections [9-119 tain 9-126, * * * * * * tively estoppel res- [and] upon 9-132 devolve shall 9-127] ** judicata *Estoppel was never men- other, in the from the ington absence Wash- tioned in District either federal or of Co- upon Capi- it shall of both devolve estoppel lumbia answers. Nor was asserted * * * Board tal Police ] [sic an amended answer. Nor indeed evidence argues he is Powell also entitled 13. Chief (to pleadings might introduced conformed, be plaintiffs a directed verdict because the Fed.R.Civ.P.) 15(b), Rule see collaterally estopped relitigating from the issue record stances, criminal trial. In these circum- in the probable arrests. cause for His of theory estoppel the defense of collateral brought eight is that class members Buckley-Madison, waived. See Camalier & charges moved for a trial on criminal twice Hotel, Inc., U.S.App.D.C. Inc. v. Madison acquittal and twice were directed verdict 161-162, n.92 513 F.2d 419-420 puts a motion in issue the refused. Since such (1975). sufficiency evidence adduced apply apparently have conviction, 14. The us dissent it is ar- to sustain Government probable gued, judge some of 184 must have found other law. See dissent at-n.21 trial U.S.App.D.C., What of 566 F.2d. at 204 n.21 exist re- cause for arrest to since otherwise mystery. might acquittal the law Were we would have to direct a verdict fusal is.a constitutionality improper. of an decide the issue of been per- required Powell17 that, issued urge further because They 5.May to leave charged warnings at the scene of the sons be individual plaintiffs for under arrest solely violating placed with the District of they arrests before were statute, 22 Ac- entry unlawful D.C. in a mass demonstration. participating Columbia (1973),15Chief Powell cannot how- testimony, 3102 Powell’s cording Code to Chief § by showing merely that there to leave ever, now defend orders such individualized grounds believing reasonable for that were Notwithstand- given May on 5.18 were not violated, 124 had been but 9 D.C.Code Chief interpretation, administrative ing § this that there were reasonable must show disperse are not urges that orders to Powell that 22 grounds believing D.C.Code and, further, 124 that a required Section 3102 had been as well. violated Before § in this re- regulations own violation of his turning to the evidence resolve we must an falsity on the gard bearing has no law, dispute applicable about be- section. For the reasons arrest under that cause Powell asserts that the facts Chief below, we find that orders to set forth a 124 making out Section violation are ma- therefore and we disperse required, making from those a terially different out contention. reject Chief Powell’s 3102 violation in that the latter Section disperse oppor- an order to and an requires (b) while, tunity to in his disperse opinion, the indicated, parties agree all As view, former does not. In our Chief Pow- announced in control principles Nicholson position ell’s is incorrect. Judge this case. printed We 1. The to Arrests on Applicable unpublished Law in Nicholson opinion Greene’s and, 1971 to this there- Appendix oрinion as the fore, are points will summarize

(a) present purposes. relevant for particularly At the outset we note Chief Powell’s Quakers In Nicholson 13 were arrested argument has a serendipitous quality about it, standing steps Capitol while on the for the record shows that Chief Powell reading names of Vietnam War dead from unquestionably steps took some to order the and, moreover, Congressional They crowd to 5 Record. disperse May violating he with 22 practice charged by testified that standard at the information Capitol would be for such orders to be in that failed to leave D.C.Code 3102 § experience Capitol because it was the Capitol Capitol requested when Quakers Police that many people policeman were not aware of to do so. The moved to governing Capi- ground statutes conduct at the dismiss the information would, tol not constitutional- upon being 22 D.C.Code 3102 could notified of § violation, their activi- potential bring ly applied their conduct into to them because addition, line with the law.16 In ties were the First Amend- regulations protected * * *, thereon, pant being arrest under 9 124 de novo —in or or § D.C.Code therein teaching Ray authority violation of the of Pierson v. to remain therein or without lawful policemen “charged predicting are not quit the same on the thereon shall refuse to law,” future course of constitutional occupant, or demand of the lawful 547, 557, (1967) 1219 S.Ct. thereof, lawfully charge person —we unconstitu- shall be * * have to conclude that 124 was § guilty deemed of misdemeanor *. pursuant tional on its face and arrests to that per section unconstitutional se. See Jeannette 2096, 2099-2100, 16. Tr. JA 1289-1290. Police, Brigade Rankin v. Chief of court) F.Supp. (D.D.C.) (three-judge 17. See note 44 infra. aff'd, (McGowan, J.), (1972). L.Ed.2d arresting officers made the “[N]one who, Any person authority, without lawful opportunity gave that last statement enter, enter, any attempt public or shall people being leave to the who were arrested * * * private dwelling, building property or other .” JA 1295. Tr. * * * against will of lawful occu- orders, rules, regulations, set of or stan- holding Judge agreed, Greene ment.19 consult, conse- forum and which he can and the public was a dards invalid 3102 was that Section administration themselves quently precedents of it set stan- since no applied at the contradictory uncertain.23 Not- its enforcement.20 dards whatever Notwithstanding findings these that Section withstanding the conclusion conclusions, Judge held that 9 Greene vague, Judge unconstitutionally 3102 was 124 could be from consti D.C.Code saved § accepted part Greene considered limiting infirmity by construc tutional by the argument pressed Government —that tion. The the construction language Quakers could against the indictments important quote, we it in adopted is the could show that be saved if Government full: violating 9 D.C.Code Quakers were also therefore, It is appropriate, under from ordered at the time § Capi- statute to bar or to from the order apparently It was the Govern- Capitol. Grounds, noisy, which any group tol is either that 9 theory ment’s D.C.Code § behavior, violent, armed, disorderly in or oi; could unconstitutionally vague was not any has a to inter- group purpose which limiting con- subjected appropriate to an processes Congress, fere with the of the struction. any Congress, congressional Member of further on 124 created Reliance Section tourist, visitor, employee, group оr any statute, however, difficulties, since effect, by presence, which has the its of Capitol public all of the as a which bans use interfering processes of with the Con- the dis- it is except suspended forum as gress, of any Congress, congres- Member and the cretion the House Speaker, visitor, tourist; employee, or sional Senate,21 also was found President any any part which group damages Worse, as written. be unconstitutional or building, shrubbery, plant life.22 Judge suspension found that Greene category, the would have conduct each interpreted which the had power, (in disruptive or substantial more more to be system,22 “permit” allow creation of a normally engaged number) degree than that or routinely permitted selectively and that been used by and others tourists on the Grounds.24 rules; permits like- written there are no writing; usually wise are not members Judge ruled Greene then indictment knowing no way public of 22 D.C.Code 3102 charging violation § they might be in violation of whether applied as constitutionally valid except law how avoid violations or could Capitol if the only if Government by inquiries or to Mem- prior experience of 9 show a simultaneous violation D.C.Code Capi- Congress bers of or members 124 as limited. § tol Force. Police sfc ^[*] % ^{[*] [*]} (c) appli- We our consideration of the that, begin as inescapable The conclusion is cation to the instant administered, of Nicholson case is it is impossible law noting that Greene’s Judge opinion express- to know whether his ‍​​​‌​‌‌‌‌​​​​‌‌​​​‌​​‌​‌‌​‌​‌‌​​‌‌​‌‌‌​​​​‌​‌​‌‌‍anyone presence, 124 is unconsti- ly or his stated that D.C.Code presence group, Capitol on § lawful, except no as ground Hill or unlawful. There is tutional when is used is 19. United States v. aff’d, [1]-[2]. et al. 263 A.2d 56 (D.C.Ct. of Gen.Sess. June (D.C.App.1970), Nicholson, Nos. 20210-69A Appendix at 1969), 22. Appendix at See note 12 United States themselves authorize supra. ^[4] n.6. The Nicholson, statutes involved permit supra note system. do Id., [7], Id., Appendix Appendix 23. at at [5] [3]. 20. — at note See 9 D.C.Code supra. §§ 128-129 (1973), set forth ed). Id., Appendix at ^[17] & n.22 (emphasis add- Second, vague of view. points unpopular from the to order or “to bar subject to it fair those give enumerated statute fails to groups one of the Grounds”25 Pow- conduct be- apparently point It is notice of the opinion. in the cannot be language such some forms of Where position prohibited. ell’s comes opin- Nicholson literally because the statute regulated taken arguably conduct charging only vio- Amendment, informations ion involved protected by the First are 3102, that orders to 22 D.C.Code § lations of creates an unconstitu- precision such lack to the Nicholson had in fact been quit chilling effect. tional issue before defendants, only vague both Nicholson addresses those propriety Judge Greene the latter —“it is particularly problems, ness true, a crabbed but such All this is orders. his know whether impossible anyone vio- nonetheless does Nicholson reading of group, of his presence presence, or analysis since Judge lence Greene’s lawful, unlawful.”27 Hill that 22 D.C.Code of Nicholson point sug Powell read as Chief Nicholson Were dem- nullity applied legal is a § be to however, only effect would its gests, and informations at the onstrations There executive discretion. cabin of that statute a violation charging because, faced warning no fair still be a simultaneous if the facts show valid administration “precedents of [which were] violation of 9 constitutionally permitted and uncertain,”28 cоntradictory themselves 124, or not 9 whether D.C.Code D.C.Code § anyone to tell impossible it would be charged in the information. 124 is § constitutionally protect his otherwise when had be (or group) that of his ed behavior addition, the central conclusion In more substantial disruptive or come “more 124 was 9 of Nicholson is that D.C.Code § number) normally that (in degree or than vague as written and ad unconstitutionally routinely and others engaged by tourists vagueness is ministered. The vice of such only Yet if on the Grounds.”29 permitted First, vague puts statute too twofold.26 would a violation a condition obtained officials, such in the hands of much discretion According of 124 have occurred.30 may result that the statute Section with the that would of Nicholson ly, only reading hold against those who selectively enforced 29. 30. At a number of 28. 25. 27. 26. justified to enter Treaty.” ments in Exhibit onstration manding also made has intimated tion Appendix at [7]. fere coming strators Rev. States v. [17], Doctrine Id., Appendix at Id. Id, See, United States with the indicating Particular Appendix to the e. announced their intention 67-81 because he Nicholson, Federal Exhibit in the that the to the fact was to g., May congress processes that his arrests Capitol that some demonstrators Note, (1960), and cases cited therein. buildings at [17] emphasis Supreme Day “lay purpose points in brief Chief Powell ^[17] supra note Nicholson, supra had Tactical The ratify a nonviolent n.22. (emphasis at least intelligence “a Congress.” Court, is Void-for-Vagueness at 5. Reference disrupt purpose placed Manual, plaintiffs Peoples some demon- Appendix 109 U.Pa.L. added). on state- the work siege informa- note to inter- attempt Federal 5 dem- United Peace were were de- that ic definition completely normally engaged in routinely permitted on the Grounds.” lawful the statute. crime impede, disrupt, assembly make was relevant to good substantial opinion actions, poses Congress § announced struction of conduct dix We 123(b)(4) (1973), Congress. any App.D.C. at conduct must be unlawful faith and reasonableness of Chief begin by noting that Nicholson does not ^[17] specific session of the purpose Capitol but in furtherance of such a clearly coming statute, n.22. in Hunter v. District of accords (in degree of a the District of Columbia unlawful Moreover, In intent to interfere assembly and an overt act forbidden Grounds indicates that our crime, or disturb the Far from to the not conclusive a crime. Footnote which covers jury’s judgment, with the Congress “more D.C.Code (D.C.Cir. 1918), the Nicholson there tourists Capitol or requires both an un- statute, being determination number) disruptive is this information orderly or either House governing another section there must be “with and others and an § on this with the purpose, precisely 9 D.C.Code idiosyncrat- Columbia, than definition intent which is Powell’s conduct or more Appen- (1973), of the point. con- pur- that quit pre- of eliminat- an order to must purpose literal one that Judge further Greene’s 124.31 9 D.C.Code § cede arrests under chilling unconstitutional effect is the ing an * * Finally, specific disrupt crime even if intent to elements of that thereof Nicholson, Congress intent, however, were a crime under we beyond specific go well record, light “loud, think the viewed in the most fa- knowing utterance of willful or include support plaintiffs, would an infer- vorable to language” threatening, or “disorder- or abusive Powell ence that it was unreasonable for Chief any place upon ly disruptive “at conduct” or 1,200 to have believed that all arrestees had Grounds.” the United States specific such a intent. For this reason the surely vague proscriptions do not of § arrest of the crowd as a whole could not consti- specific provisions of § override the tutionally predicated specific have been addition, credulity to the break- it strains some, only quit. intent of but on a refusal to ing point argue Powell had an that Chief note 31 infra. See intelligence belief at the time that honest above, For the reasons stated the fact enough before him to make information may specific some crowd members had following colloquy illustrative of arrest. The Congress any way disrupt intent require does not point: argument a modification of the in text. Chief, attorney] you [by plaintiffs’ Q text, analysis In addition to out in set people information about some all of this points panel made another of this court in lay siege planning before Washington Mobilization Committee v. Culli- steps anyone reached the that after- ever nane, -, U.S.App.D.C. 566 F.2d 107 noon, you? didn’t (No. April 1977), decided are di- 75-2010. Yes, [byA sir. Powell] rectly relevant here. There the court faced the groups you com- And knew there Q justified question whether mall, you up ing had seen from the because arresting demonstrators innocent vio- mall, you congregating them along lence or obstruction with others who up reports In- advanced heard radio law, violating the or were constitutionally whether Avenue, dependence isn’t that so? procedure valid would be to A That is correct. individually. ruling arrest lawbreakers After yet you them come on to the And let Q police may expected required that the not be steps, you? didn’t single out a demonstration individuals once Yes, A sir. “substantially becomes infected with violence prevent people no effort to You made Q at-, obstruction,” U.S.App.D.C. 566 or 184 steps, you? getting on the did from 120, holding by qualified F.2d at the court its No, A sir. indicating: Moreover, 2088, Powell in JA 1278. Chief Tr. suggest We do not of course that one who question is it that these answer to the “What may has violated no law be arrested for the you justified people doing felt 1200 were offenses of those who have been violent or ordering the intelli- them to leave?” never listed obstructive. As we have seen however the information, following gence but stated the fac- may police validly order violent or obstruc- (1) messages Speaker’s radio that tors: disperse tive demonstrators to or clear the people break into office was afraid that would bystander any streets. If demonstrator or windows, through although Capitol he saw obey refuses to such an order after fair notice windows; (2) breaking some four or no one opportunity comply, his arrest does climbing lampposts; (3) persons were five though not violate the Constitution even he writing people were on the some one or two previously not been violent or obstruc- has walls; (4) protestors’ “hostile attitude” tive. there”; (5) and saw which Chief Powell “heard added; omitted). (emphasis footnote In a Id. “chanting towards crowd’s and reaction footnote the court indicated that it was myself.” See Tr. 2108- officers and “pause” by some the fact that some arrestees 2112, Finally, Powell tes- JA 1298-1302. Chief may disperse. not have heard orders to See understanding as to his of the Nicholson tified U.S.App.D.C. at-, 184 at 120 n.4. 566 F.2d following way: opinion in the The record here indicates that not all of the * * * attorney] [by plaintiffs’ Was Q noisy— arrestees were violent or obstructive your understanding it that view indeed, testimony plaintiffs introduced that requirement to the Nicholson in the footnote minority only a small of the demonstrators * * *, that before decision any every- 22] [footnote involved in mischief. Thus not any anyone you ask violating Capitol can make arrests or arrested was Grounds one Capitol grounds, interpreted by there conduct leave the [sic] statute even as statute disruptive Accordingly, must be of the business of Con- Powell. Cullinane would Chief degree ordinarily gress greater opportunity disperse require than is to a notice an grounds? permitted by groups of the crowd “as a unit” would before arrests * * * Moreover, Yes, constitutionally permissible. A sir. 2149, added). required (emphasis court is “fair notice” Cullinane Tr. JA 1339 182 ground believing ble there was— if Nicholson were not conclu

Even terms, until its suspension expired by an give oppor need to order and sive on the dispersal one of which was that a order be before arrest under disperse Sec tunity given. 124, to this case would peculiar tion facts First, such order. required have Second, protestors were un Speaker Albert in fact undisputed that questionably granted “per an unwritten suspended prior any 124 to the time Section mit,” Nicholson, as described in to assemble testified were made.32 Chief Powell arrests Be steps.34 on the Grounds and * * * understanding Speaker his Albert’s “police cause officials effect protestors was that the were to instructions they told the demonstrators could meet to remain while Members of be allowed did,” they where “to sustain [plaintiffs’] the crowd Congress speaking unless demonstrating later conviction for where disorderly, eventuality became in which they they] told could be to ‘would [them leave; people “we if should ask these entrapment sanction an indefensible sort leave, that we would have they refused to convicting a citizen for exer State — With steps necessary.”33

to take whatever cising privilege which the had clear State ” suspended, the statute there was no law him was him.’ ly told available to Cox v. plaintiffs which the could have been violat Louisiana, 559, 571, 476, 85 U.S. S.Ct. ing even if conditions were in 484, the Nicholson (1965), citing Raley L.Ed.2d 487 v. and, therefore, present Ohio, 423, 426, fact there no probable (1959).35 cause for arrest —and no reasona- In these L.Ed.2d circum- reasonably likely tion, keep prote- notice to have all reached no efforts were made to despite assembling steps. the crowd noise the demonstrators stors from on the See Tr. may making. Washington quoted supra. been See Mo- JA at note 29 See Cullinane, supra, 563-564, bilization 407-408, Committee also Tr. JA 594. There at-, U.S.App.D.C. 566 F.2d at 120 n.4. can be no doubt that these actions constituted police permission and, steps to assemble on the 2553-2554, 2556-2557, 1996-2000, 32. See Tr. indeed, defense counsel even conceded that the 1561-1562, 1564-1565, JA 1220-1224. plaintiffs go had been “allowed to (emphasis added). 33. Tr. JA 1180 steps.” Tr. JA 570. stipulation Speaker Powell introduced a testify Albert would also that he told Powell to legal very 35. The factual and situation in Cox is and, disperse the crowd if presented similar to that here. There Reverend leave, 2505-2506, to make arrests. Tr. JA group rights and a civil Cox demonstrators 1514-1515. permitted congregate had been on a side- walk across from the courthouse in Baton generally purpose It was known that the Rouge, companion case, Louisiana. See the May meeting at the Grounds Louisiana, 536, 538-544, v. Cox 379 U.S. 85 by speeches Congress to hear Members of and 453, (1965). 13 L.Ed.2d 471 S.Ct. Cox was present petition, to People’s to them a the so-called subsequently picketing convicted of “near” the Treaty. 440, Peace Tr. JA 293. From courthouse. prece- plaintiff this fact alone familiar with Supreme Court refused to strike down Capitol dents of administration of the Grounds picketing facially statute as invalid because reasonably statute could have concluded that recognized legitimate that Louisiana had in- issued, “permits” Capitol had been since the protecting pres- terests in courts from undue past persons Police had in the allowed invited Louisiana, 559, sures. v. Cox 379 U.S. 560- by Capitol go to the freely. Members to come and 564, 476, (1965). 85 13 L.Ed.2d 487 Nicholson, supra See United States v. Court further held that the 19, fact, word “near” was Appendix note at & n.9. [6]-[7] precise, sufficiently not but was May amenable of proof events of congressmen further 6 offer that both nondiscriminatory application that statute Capitol and Police officers unconstitutionally vague. was not thought Id. at 568- congressmen that individual could sus- (i. 569, Nonetheless, e., pend they 85 S.Ct. 476. indi- that Court § D.C.Code could grant Thus, that “permit”). although cated Cox could not be convicted because the line of process initially due stopped be offended were the con- marchers was the Capitol at the border of “highest Capitol by Inspector viction allowed to when stand Grounds Xander of the Police, City presence stepped upon being officials of the in the he of aside Mayor, by Dellums, Representatives Abzug, told Sheriff and in effect told the demon- they they they that Mitchell that had invited the marchers to strators could meet where did * * 2552, 571, meet with Tr. JA In addi- them. 1560. *.” Id. 379 U.S. at 85 S.Ct. at 484. Norfolk R. regard thereto.” Southern Co. valid arrest constitutionally stances, no Inc., 662, Foods, 195 F.2d v. Davis Frozen until an order made been have could accord, (4th 1952); g., Dehydrat was itself e. which Cir. given been disperse had Corp., 292 See v. A. O. ing considerations. Process Co. Smith permissible on based denied, Cir.), at 571- cert. (1st 379 U.S. 656 n.6 Louisiana, supra, F.2d v. Cox (1961); 7 L.Ed.2d 82 S.Ct. 85 S.Ct. Gerald, v. 369 F.2d Casualty American Co. above, plain the reasons stated For 1966). (4th Cir. been constitutionally have tiffs could 9 D.C.Code either mind, under we now re- group as a With this standard in arrested unless Chief 124 or 22 D.C.Code tendered Chief Powell § view the evidence § (1) that reason to believe: had his case. conclusively establishing Powell groups that one of the comprised plaintiffs First, Chief Powell Capi under Nicholson from the or ordered banned

could be that it was rea Nicholson; required to dis was to establish that orders (2) under tol that constituted apprised plaintiffs to believe sonable given been had perse an and more noisy under that was more group it was as a whole crowd leave; reasona (3) groups that a than other allowed on the disruptive obligation plain this issue Chief been On opportunity Grounds.36 ble conclusion, This Capitol. primarily leave the relies on his own testimo tiffs to Powell Cox, the lan Nicholson, with an drawn from the effect that he was faced ny to predating sources 124—all of guage Section mob from the unruly, noisy, out-of-control represents judgment our steps. 1971—in he arrived at moment Powell was Chief hand, law which Plaintiffs, well settled on the other introduced quali his losing pain obliged to know noisy, unruly events equally evidence that Strickland, Wood immunity. fied See no Capitol steps had been held 321-322, 95 S.Ct. supra, being police. taken adverse action addition, on behalf of testifying In' officials the Evidence of Review 2. Standard the demonstra the defendants stated that no viola indicated, “fairly mild”37 Pow- tion already Chief As we statute had tion of the Grounds on the issue proof ell bears the burden Wilson, Indeed, even Chief not rule out occurred.38 does While this immunity. his co-defendant, “it was a reason stated that in his directing verdict possibility crowd,” by only “a orderly marred few ably to dem- favor, Powell require it does Finally, plain particular misbehaviors.”39 each element the facts on onstrate that out-of-court introduced evidence defense, light tiffs taken in the immunity Congressman statement Chief Powell nonetheless appellees, most favorable to evening May Rangel, made on favor that “rea- in Chief Powell’s clearly so one of the more doubt with entertain no men could demonstration] sonable “[the Capitol steps, see notes 30 & 34 strik- block the Judge 124 is § construction Greene’s Cox, supra, recognized plaintiffs, like Reverend In Nicholson ingly he similar. being rely legitimate free on the administrative construc- Congress interest entitled had a interference and to assume business without tion of statute conduct its and, further, assembled, lawfully told otherwise. violence until be secure from were and to being public in able to an interest had that supra. 36. See text at note 24 safety free from unrea- in visit the pathways. of roads sonable obstruction Fergu- Captain Testimony 37. Police Nicholson, supra note 19, v. See United States son, 3480, Tr. JA 1846. Appendix What constituted at [11] [16].— Congress or the interference with unreasonable testimony 38. See United States of Assistant judgment public left to the administrative was 540, Larimer, 709, 735, 741, Attorney JA Tr. police, subject set out to the construction 566, 572. Thus, supra. Inspector when 24 in text at note plaintiffs onto the to come allowed the Xander 1589, JA 962. 39. Tr. grounds no efforts were made and when 184 regulations. Chief Powell’s required seen on crowds

peaceful [Powell] powerful police made of a was use was the Nor Thus not steps.”40 was at apparently truck that sound the events of characterization actual scene, any attempt nor was made to use the Pow- veracity of Chief contested, but system of demonstra- public in address directly was as he did testifying ell leaders; indeed, an offer from evidence, Con- tion’s state this Given issue. to make announcements gressman Dellums jury. one indisputably was issue system specifically refused over that similarly in con The evidence Powell.42 Chief Powell whether Chief question on flict Finally, jury judg would in our sure the to make fide effort made a bona be entitled to conclude that Chief ment Although order. dispersal his heard crowd acting good Powell was not faith. As we jury evidence that certainly there noted, already Chief Powell’s out-of- that Powell made to the effect could credit Congressman Rangel admission to each court the crowd and was to inform attempts good claim of faith. out, would belie Powell’s there down and drowned time hooted inaction after also would Chief Powell’s Powell realized So that Chief was also evidence his remark to Chief Wilson which indicates warnings heard his crowd had not Powell that notice to the the situa was aware steps no to correct took yet Buttressing inadequate. at crowd had been reporter present example, For tion. the further the inference of bad faith43 is he had overheard the scene testified Powell, relying exclusive “that he faсt that Chief Wilson say Powell Chief Chief over a ly dispersal on orders shouted hand- they whether wasn’t sure [the [Powell] notice, give attempting held bullhorn in him or not or heard [that] demonstrators] Handling him.41 violated his own “Procedure for a lot of them heard think he didn’t Groups”44 regulation issued over this, warnings further Protest no Regardless —a signature. Powell’s made, warnings such although horns, which is the small audio handler that also text at note 75 JA 2166. See 40. Tr. they people claimed could not hear distin- infra. guished over the roar the crowd. 819-820, JA 644-645. 41. Tr. guaranteed The curdler was to be heard for * * very at least a mile *. works well [I]t 578; Tr. JA 335. Chief 42. 'Tr. JA getting message as far as out to a crowd. urges one in brief that the fact no Powell Testimony Zanders, Commanding of Theodore warnings was due loudness heard his Officer, Metropolitan Department Spe- Police and, therefore, fault. was not his the crowd Division, 2349-2350, Operations cial Tr. impressed argument. We are not Washington disperse Mobilization Committee v. Culli- order to can in which an situation nane, F.Supp. (D.D.C.1975), rev’d, constitutionally there will be substan- 75-2010, disorder, Washington -, (No. U.S.App.D.C. see Mobiliza- F.2d 107 tial noise or tion Cullinane, supra note 1977). April Committee unit was decided apparently This curdler -, U.S.App.D.C. Capitol. 120. For 566 F.2d at at the See Tr. JA 578. police have to warn each Parenthetically, will either this reason it should be noted that Zan- individually through work testimony demonstrator ders’ in Cullinane would tend to indi- to the extent leaders of a demonstration cate that Chief Powell should have been aware public sys- powerful address have access to that the hand-held bullhorn he testified he used Alternatively, 44 infra. tems. See text at note powerful enough give orders was not his appears called a “sound cur- that a device reach the crowd. which can make the dler” is available Hupart Higher v. Board of Education Cf. most tumult: heard over York, City F.Supp. of New you curdler that referred What is the Q. (S.D.N.Y.1976). to? we had A. That is an audio curdler that regulation Exhibit 11. This states Federal car, top of the barricade installed that: kept yard wagon in the a converted Brinks ranking ARRESTS the particular PRELIMINARY TO up at the Tactical Unit. This cur- charge bought Applied at the scene this case Elec- official [in dler was in 1970 from approach shall the demonstra- of the fact Chief Powell] tronics over in Alexandria because explain leadership given bull- the law violations we had a lot of instructions on tion per se point belief on Nicholson in Powell’s conflicts Notwithstanding the obvious highly above, The law here was not Powell reasonable. out Chief evidence set with the technical, if at all theory penetrable on the direct a verdict have us controlling case was absolute de- of counsel. help counsel is an advice of that Nicholson, Powell was conclusively show with Chief that the facts fense and addition, the central present In fully acquainted. relied on counsel that he both as fact: were is untenable issue was one of position probable This cause Capitol. directing than noisy disruptive of law and as a basis more or plaintiffs a matter case. on the facts of this routinely verdict allowed onto those Powell, issue Chief On this Grounds? on which advice only point charge and a man officer in is the claimed as a defense counsel expert as obviously was long experience, plaintiffs constituted whether question might give who him advice. any counsel Capi from the be ordered that cоuld group It is opinion. the Nicholson to pursuant tol addition, raised a seri appellees In Pow advised Chief that counsel not claimed concerning fact whether question of ous without plaintiffs arrest he could ell that fully had disclosed the House Powell Chief ac disperse; an order to them giving first advisor, legal to his Assist Speaker’s orders was counsel’s advice scope cordingly, Zimmerman, Attorney ant United States defense. complete create a enough to own asking his advice. Powell’s prior be a defense would advice of counsel Nor testimony conclusively piece shows good faith.45 Since sought it was unless Pow primarily of advice relied on Chief have been would not verdict a directed Powell agreement ell—Zimmerman’s with follows, issue, faith good proper that “this upon arriving Capitol steps at the given verdict could be that no such directly flagrant violation of 9-124” —was is a most of advice of counsel. strength Powell was rendered before advised event, Speaker suspended this is not a case had in fact any Section reasonably Powell could not counsel should Chief 124.46 Chief where advice of make being request at 4-5. At trial Chief maintained Id. Powell committed. He shall which are any im- ascertain who the leaders of be corrected that he could not and all violations that mediatly were, complied although request he further If such the demonstration [sic]. any attempt with, be taken. admitted that he made no locate action shall no further group comply congressmen the re- who had invited the do not with If the leaders 2094-2095, steps. publicy See Tr. JA 1284- quest, an- onto the the official shall [sic] attempt amplifi- apparently through made 1285. Nor crowd a voice nounce to the * * amplification equipment of following to use the sound *: cation * * hereby give dispersal per- all orders. “I am *. I inform the demonstrators you that he never identified are in violation Powell admitted sons assembled Chief alleged general (state regulation to have been violated. Tr. terms the statute 2103, Powell admitted that he give if JA 1293. Chief number Code and known). stature [sic] arresting States knew for a fact that “none In the name of the United you Board, or be made the statement leave [to all of officers Police I command gave opportunity last disperse arrested] leave to the ***.*** here assembled to being people charge arrested reasona- who shall wait a The official * * compliance. length If *.” Tr. JA 1295. after of time ble nothing develops the first announcement this (Second) E.g., of Torts Restatement repeat the aforstated order. [sic] Official shall (1970). 666(1)(a) § * * * ****** Powell testified that this advice 46. Chief given to him between 2:56 and 3:00 P.M. on accompany shall ARRESTING OFFICERS 1951-1952, JA 1175-1176. Imme- 5. Tr. proximity transporting officers to the gave diately this Powell the first of after to be arrested. The individuals about disperse.- Tr. JA of orders to a series arresting shall state to the violator officer Inspec- testified that Powell later you (give 1176. Chief law violat- are in violation of him the information Xander reached applicable tor ed). “You are re- state When Speaker suspended 124 after he § had please depart that the quested area immediate- this warnings. Tr. subject first set of you ly peacable shall [sic] * * * yourself JA 1223. immediate arrest.” instructing jury respect erred in to act on that advice once continued immunity defense. qualified official Speaker’s of the wishes. aware he became disposes discussion thus far of most of offer Our on counsel would reliance Nor objections we will not Chief Powell’s Powell had disclosed to unless Chief defense responses our objections rehearse those the facts and circumstances attorney all his remains, here. however. point One Yet on surrounding Speaker’s orders.47 Attorney of whether question the critical parts Focusing on selected Speaker’s of the Zimmerman was informed instructions, complains Powell jury Chief 124, Attorney Zim- suspension Section erroneously that instructed jury testified: “I have no recollection merman if immunity that could be made out suspension] being fact of told of that [the there probable agree we cause. While Indeed, question.”48 the time in me at liability Chief Powell could defeat being told of although Chief Powell admits showing believe that grounds reasonable orders, he did not claim at Speaker’s course, probable plus, cause existed — conveyed he this information to trial that subjective good agree faith —we do not Viewing Zimmerman. this evi- Attorney jury with his of the instruc interpretation light dence in the most favorable to originally tions. As the instructions were inference can be drawn that plaintiffs, an given, the trial court did use the terms Attorney Zimmerman counselled Chief “probable cause” grounds and “reasonable in of critical material ignorance Powell probable to believe cause existed” inter Accordingly, validity facts. of the ad- changeably. Upon objection, however, the properly ques- vice of counsel defense was jury court further instructed the the jury. tion for ‘probable no difference between “[t]here grounds cause’ and ‘reasonable to bel Jury B. New Trial —Defective Instruc- objection. There was no further ieve.’”49 tions instruction, supplemental obviously in argument As a first alternative to his in general proposition, correct as a ef verdict, favor of a directed Powell in equating “probable fect context of cause” argues regardless sufficiency of with the trial court’s extended instruction evidence, required qualified a new trial is on official No men immunity.50 judge stringent false arrest claim because trial tion of a different or more mean- See, Restatement, e.g., supra note circumstances and the information available White, 666(1)(b). Anthony gave See also to Powell at the time he the order. §§ F.Supp. (D.Del.1974) (applying you If find that Chief Powell acted reason- ably Restatement rule to 1983 action false ordering dispersal, your § then in imprisonment). arrest and false determination as to whether these arrests lawful, you must also decide whether 48. Tr. JA 2045. good Chief Powell acted in faith. simply Good faith this context means 70-71, 49. Tr. JA 2352-2353. that Chief Powell ordered the Plaintiffs to disperse purpose enforcing for the 50. You are if instructed Chief Powell Capitol grounds statute rather than for some good reasonably faith and believed other reason which cannot be the basis of a [plaintiffs] properly could be characterized as disperse, lawful order or cannot be the groups in the one described Nicholson disperse basis lawful order to either case, justified then Chief Powell was in or- somebody. arrest dering dispersal. their determining whether Chief Powell acted If that he Defendant Powell has established orderly reasonably dispersing [sic] good acted on the faith basis of a reasonable them, you are instructed that Chief Powell circumstances, light belief in the of all of the rely entitled to on traditional sources for the * * * then he is not liable for false arrest. his information on which he based decision he is. Otherwise disperse. to order the Plaintiffs to 18-23, Tr. JA 2300-2302. These instructions Your determination as to whether Chief impeccable. pp.---of See reasonably Powell should not be based acted F.2d, App.D.C., pp. supra. 176-177 of 566 hindsight, facts and but rather on the 657, (1974); 42 L.Ed.2d 666 any Brennan v. Mid was made at cause” ing “probable Co., 999, instructions; Ins. F.2d United Life 450 consequently western jury the point in denied, 1971), cert. (7th Cir. 405 U.S. have been confused could not jury the (1972); 921, 92 30 L.Ed.2d 792 was to be resolved immunity issue Inc., v. Trucking Employers, United States extended instruction court’s accord (D.D.C.1976); Rob 72 F.R.D. 104-105 is no Accordingly, there subject. on the Ass’n, 67 v. National Basketball ertson error. (S.D.N.Y.1975); Bisgei 699-700 F.R.D. F.R.D. Corp., Trial —Erroneous Introduction er v. Fotomat New C. 119-120 (N.D.Ill.1973); Market Gardner v. Awards Inflammatory Evidence (D.Utah 1972); cf. ing Corp., 55 F.R.D. Chief Powell yet another alternative As Corp., 54 F.R.D. Wainwright v. Kraftco he a new should be afforded argues (N.D.Ga.1972) (although discovery 534-535 was because first trial tainted trial proper, discovery is not under Rules 33-34 and admission of evidence on bad faith 30, 31, and 45 is and proper Rules under testimony of non- through

malice issue ensure orders will be entered to appropriate members, which was of party class its adequately prepare can that defendant policeman “I saw an unidentified form: Wolfinbarger, see case). But Fischer while ar- unidentified demonstrator beat an (N.D.Ky.1971). F.R.D. is not to Prejudice only him.” said resting inflammatory depo nature of such did get That Chief Powell not rest intimately is to be who testimony, but also said from absentee class members sitions therefore, litigat- suit witnesses, the fact that this under linked to would be Frankly, find the he made effort to class action. we the fact that no ed as a scores extremely dif- such witnesses. objection any discovery muddled from latter take understand, attempt we will Indeed, but and the District of ficult Chief Wilson discovery as we can. took Yet anyone. best Columbia no address of all members were in the the names class Apparently position Chief Powell’s These hands of District Columbia. that, through is because the witnesses to plaintiffs’ names were made available testimony whom this introduced some in the summer of 1973— counsel time members, he was unnamed class mostly began conjunc before trial months —in surprise deposed since he had not caught by members. sending tion with notice class since even if he had persons these Moreover, there is no indication in the rec discovery the Federal Rules of Civil sought Powell or other defend ord that Chief Procedure not have allowed it. Chief prospective ant ever asked for a list of reading is Powell’s of the Federal Rules witnesses. Because the defendants in this it is patently incorrect. While true elementary steps suit failed to even take discovery against absentee class members protect surprise, they themselves from can Rules 33 and 34 cannot be had as under complain. not now heard course, majori overwhelming matter de Having that he was argued ty of courts which considered evidence, prived of discovery of relevant against absentees have scope discovery available, argues opposite propo Chief Powell also discovery concluded that such testimony sition: assaults regarding requested when the at least information by policemen was and batteries committed ques of common relevant decision as have been tions, irrelevant should excluded interrogatories when or document ar inflammatory. difficulty with this good are tendered in faith and requests be burdensome, gument objection in is that was taken unduly and when the no not low on now repre grounds is not from the asserted formation available grounds Ap were not stated below valid. parties. sentative Clark v. Universal See Builders, Inc., (7th pellants was none surprise; F.2d 340-341 asserted there their failure denied, 95 S.Ct. other than that own Cir.), cert. caused issue,54 cut off damages he additional class coun- Reacting to discovery. to seek information was challenged that such and in- argument testimony repetitious sel’s damages, the level of circumstances, to determine In these flammatory.55 relevant we the rele- objected to properly appellants see ground no for reversal. score, on that but did evidence vance the court ruled object when Appro- D. Trial —Failure New to Create to the issue of testimony was relevant priate Subclasses malice of Chiefs Powell and faith bad As a final alternative Indeed, time of the arrests.51 at the Wilson of the false argues Powell that trial arrest cautionary own instruction— appellants’ him to lose by claim class action caused virtually by verbatim the given was which have had if might defenses he otherwise the relevance of judge52 recognized trial — proceeded against him indi plaintiffs had limited pur- evidence for the challenged the if subclasses had Moreover, vidually appropriate or faith.53 bad showing of pose been, formed at the time this case was sub rejected class judge the trial after soon argument jury.56 on mitted to the This raises concerning relevance argument counsel’s 932-934, police is entitled whether the defendant officer JA 721-723. 51. See Tr. immunity. pp.-- qualified to official See - Jury Compare federal Instruc- defendants’ U.S.App.D.C., pp. of 184 174-177 of with JA 2309. F.2d, tion JA supra. only relating That is the issue liability actually for false which was to presented arrest given jury of instruction the The text the jury qualified to the in this suit. The was: immunity by issue would be tried sub- official considering liability the of the defendants [I]n stantially the same evidence no matter who case, you may not take into considera- in this brought brought suit or whether suit was indi- involving any any the evidence of tion vidually, by joined plaintiffs, byor a class. The battery] by un- acts assault and those [of commonality of evidence relevant to a belief police officers or other unnamed and named in that a crime had been committed the instant persons, except you deter- unidentified by the fact that case is further attested they committed under the mine that were Attorney, trying in the criminal United States supervision guidance the defendant. or members, against eight class told class case added). subjec- (emphasis Since the JA 2309 any eight counsel that individuals could be good put been tive faith of the defendants had and that used as test case defendants defense by affirmative in assertion of an defense issue pick eight. counsel could See Tr. 4130- immunity, agree good we that evidence faith precisely JA 2136-2137. It is this situa- policemen guided in as- the defendants tion—in which each class member would have directly relevant. saults on demonstrators present proceed to individually the same case were he to 931-934, 720-723. 54. See Tr. JA 23(b)(3) which Rule is ad- —to dressed since a action would in suсh cir- class 996-999, 755-758; Tr. JA Tr. 1047- 55. See cumstances consolidate otherwise identical ac- 1048, JA 777-778. single tions into a efficient unit. Nor do we think that determination of dam- argument Powell also makes 56. Chief ages requires in this case individualization. As improperly certified at the outset this case tried, damages the suit was were fixed either “questions of law or fact common to the since by class as a whole or subclass. See predominate members of the class [did not] supra. Assignment plaintiffs ap- note 6 to any affecting only questions individual over propriate apparently * * subclasses can be made 23(b)(3), Rule members Fed.R. review court records. Chief proposition is a cita- Civ.P. The basis for objected Powell has nowhere to this mode of Advisory to the Rules Committee’s com- tion determining damages, and we see no difficul- 1966 amendments of Rule 23: “A ments to the ties with it. injuries resulting in numer- ‘mass accident’ to Moreover, Pow- whatever the merits of Chief ordinarily appropriate persons is for a ous they arguments might ell’s have been been sig- the likelihood that class action because of * * * judge pretrial during directed to the trial questions present, would be nificant case, not, they stage ways.” affecting of this which were those individuals in different substantially appeal (1966). merits are diminished on F.R.D. only appellate an since the issue before court is overly accept Powell’s me- We cannot Chief judge trial whether the abused his discretion equating of with a “mass chanical false arrest granting liability, class status. See Bermudez v. United question accident.” As to Department Agriculture, generally States to be tried in a false arrest suit persons who were across originally of 100 Chief Powell whether questions: two or- Capitol steps street heard by way from pressed the theories now presented instruction, yet do so.59 disperse or ders to failed to motion, ob- proposed jury writers, asserts he in a manner As climbers jury instructions jection to valid unquestionably there were judge trial of his apprised likely to Preiss, As Powell grounds was irretriev- for arrest. before the case contentions actually suggests jury and whether instructions ably jury57 submitted there was no event were erroneous because now tendered are theories an willfully that Preiss refused question evidence intro- supported by correct probable cause Similarly, trial.58 order to leave. duced at group protestors arrest second short, argument, is that Powell’s alleged be found order persons shows to five record that four Board to clear the Capitol Police climbing lampposts, group to this which was communicated writing on the persons one two willfully disobeyed. plain- named Capitol, walls of the that one what extent begin considering L. We warnings tiff —David Preiss —heard by waived fail- so, arguments not that a these have been disperse yet group did do 150, 157, 718, 725, App.D.C. at trial would 490 F.2d cert. him unless evidence introduced denied, jury. 94 S.Ct. L.Ed.2d to the warrant submission of issue accord, LaPrade, (1973); Thus, Paton v. 524 F.2d 559 862, if trial of a defense would theoreti- even (3d 1975); Stamp Cir. Gold Strike Co. cally subclassing, require be no there would Christensen, (10th v. 436 F.2d 792-793 Cir. sup- need to unless the defense was subclass Therefore, 1970). showing a the absence of ported by evidence. certification that rights affected “substantial 61, Fed.R.Civ.P., parties,” of the Rule it trial 59. Chief Powell also asserts error in the ap is peal that doubtful reversal of certification on mitiga- rejection his court’s instruction on appropriate. ever be would Our discus consequent damages failure to cre- tion fully points in text deals with all sion which plaintiffs allegedly a those who ate subclass for rights might affect such substantial of Chief by cooper- damages refusing enhanced their to Powell. promptly “processing” with at the ate brief, Contrary appellants’ suggestions to trial court that there was Coliseum. The ruled plaintiffs’ obligation counsel have an does not pro- linking cooperate in refusal no evidence cessing to anticipate 23 to under Rule affirmative defens- and, the duration of detention may es be raised to class claim which a and to therefore, predicate no laid there was factual subclassing motions for should he sus- make pect damages mitigation We for a instruction. put theory a that defendants will in issue appellants agree. Although that now assert decomposition requiring class. of the If an cooperate much to were held those who failed affirmative defense not raised defend- they processed quickly, longer who than those ant, purpose it is not tried and no useful would any to have not able to draw our attention been plaintiff obliga- burdening with an served claim, supporting evidence in the record such a putting posture try tion class suit in a to Indeed, we none. have found a number that a defendant never assert. In claims addition, they among plaintiffs that testified were decomposition may need for class yet they process first to held until depend proofs the nature to on of the be ten- May early day 6 or hours late into the support of an affirmative dered defense. proof, 7. See Dellums Powell [District defendants will control such it Since the n -, Appeal], U.S.App.D.C. Columbia only require to sensible defendant to -, (decided August 225 n.30 566 F.2d bring and the to the attention of the court other 4, 1977). anything, the evidence it If discloses parties any proof require which will de- class by appellants indicated, ‍​​​‌​‌‌‌‌​​​​‌‌​​​‌​​‌​‌‌​‌​‌‌​​‌‌​‌‌‌​​​​‌​‌​‌‌‍to pp.-- is that no effort made composition. weAs see - pp. bring processed promptly U.S.App.D.C., 174-177 of arrestees before of 184 Court, sitting F.2d, going judges Superior supra, arguments to all immu- who session, nity probable alternatively cause warrantless for a arrest or that in continuous congestion Accordingly, major per- defenses. great are affirmative in the courts was that so is whether defendants ade- they issue to be resolved arraigned not be fast as sons could as quately below substantive defenses case, raised their plaintiffs processed. In could be either procedural needs. and related their of incar- could not have reduced duration moving through processing ceration lines assessing whether Chief Powell lost pace. a faster rights,” supra, we see note 56 need “substantial theoretically defenses available to not consider it first became clear proce- take that the trial court was appropriate to ure of appellants Wilson and the below. Chief to rule that an steps going disperse dural order (but no federal defend- District of Columbia mandatory element of the offense for motion plaintiffs’ ant) opposition filed an plaintiffs had Appel- been arrested. opposition This did for class certification. pointed plaintiff lants’ counsel out that one for subclasses and did a need suggest —Preiss, among group who was the initial appel- critical element of that a not indicate of arrestees —had testified that he heard per- that some proof case would be lants’ warnings disperse and willfully refused Instead, warnings disperse. sons heard point to do so. At this class counsel indi- the claims of the alleged generally cated that a subclass for Preiss should be battery assault and particularly class—and However, created.62 there was no mention claims, before tri- which were abandoned arrestees, of the second group or the class action deter- al—were not suitable for writers, climbers and no indication by was to days mination. Two before trial appellants’ they try counsel that wished to begin, years complaint and three after groups separate claims of these sub- suit, was filed in this the federal defendants classes. certifica- moved for reconsideration of class For reasons known only parties, again challenged tion. This motion agreement as to reached Preiss was overall of class action treatment propriety never written jury into the instructions ten- did, subclassing. It request and did not dered by any objec- either side. Nor was however, indicate “[c]ertain tion subclassing to the absence of such a plaintiffs they warning admit heard instruction made by defendants. We can depart Capitol steps; from oth- [sic] er contends heard' no such surmise defendants made tacti- [sic] warning.”60 It was further indicated that any attempt cal decision to abandon members of the class were arrested prove giving this defense for fear of the “[s]ome approximately p.m., at 3:30 while in the impression jury the that their case as to the members presence of of Congress; 1,199 other class [sic] members was weak or to other members class were arrested avoid giving jury opportunity the to later, after all considerably the initial arrest “compromise” by holding for defendants on * * completed *.”61 No been [sic] liability one claim while for the imposing attempt was made in this two-page memo- 1,199. claims of the other Whatever the randum to alleged relate these facts to any reasons, the trial judge never became aware Indeed, legal theory. relevant throughout concern, existed, of any defendants’ if then this lawsuit Chief Powell has contended subclassing im- instructions had been dispersal that no order was any needed for properly omitted from his extended and and, theory arrest had this been accepted, it complicated charge. Nor he become did would have been immaterial some aware that anyone charge wanted a as to members of the class heard warnings the arrestees, any group jury other since no of short, and some did not. pretrial these indicating instructions were tendered this requested pleadings, decertification which. to the objections and no were raised ab- subclassing, and not were insufficient to sence aof subclass. put anyone on notice that defendants to the sought jury to submit defenses re- circumstances, In these we do quiring subclassing. sufficiently apprised not think Chief Powell position court of his At the close of all the evidence trial appellants —which made a series of motions for based on a few shreds of evidence in a directed ver- dicts, and in colloquy complicated on those motions six-week trial —before case 60. Points and 61. Memorandum of Authorities Id. Support of Motion to Reconsider Class Actiоn Determination, 2, 1974, filed December Docket JA 2239. Tr. Item No. $3,000 awarded class members Accordingly, eight and jury. to the

was submitted Fed.R.Civ.P., consid- bars our charges now the criminal and who stood trial on Rule points.63 of these eration all other class members. On this $50 challenges Powell suffi- appeal Chief Moreover, objections Powell’s Chief evidence to show that his ciency No theoretical. largely point at filing charges of criminal actions caused identify now that he could testified one In his view the arrest at climbing class. against who members those class contemporaneous there was no institution writing, and does not constitute could which any information recordation as that event defined charges of criminal Similarly, an identification. lead to such prosecution.65 Rath- of malicious in the law persons (out that some plain while is the er, filing of formal informations 1,200) after the bulk arrested liability, tort Chief triggers event made, it is also clear been arrests had maintains, and an Assistant United Powell identifying no has means Chief Powell Moore, allegedly ex- Attorney, Luke States Arrest records group. of this the members judgment, filed the ercising independent his apparently do not differ on the scene made against class members. lodged informations and the initial arrestees between entiate filed informations nor do the following. The record shows the defendants against plaintiffs. Since filing proceed The decision whether discovery any have not even tried take meeting on the informations was made in a members, they pos cannot class absentee 5,1971. meeting At night May ab linking individual sess admissions United States Attor Powell Assistant of arrestees. group sentees to the second Zimmerman, advising who had been ney Thus creation of subclasses allow was an eyewitness Powell who present Chief Powell’s jury consider conferred with steps, events meaningless ges have been a points would Attorneys Assistant United Hannon States ture, jury the case to the submission of Moore.66 Powell and Zimmerman re on a class-wide basis has not affected and their day, counted events rights” parties.64 “substantial in minutes not in story was memorialized II. MALICIOUS PROSECUTION basis of this troduced into evidence. On the information, after some dis apparently jury against Chief Pow found plaintiffs’ prosecution claim cussion between three Assistant United ell malicious Any “plain prosecution recognition four error” under Malicious has elements: 63. of a 65. Fed.R.Civ.P., by (1) must be to insti- does its the defendant found Rule rule, against plaintiff; (2) “plain a criminal action terms error” tuted admit such prosecution plain- must in the be to those circumstanc- that have ended should at least limited favor; (3) proba- plain recognized there must have been no, es in which tiffs error proceeding; express provisions Rule Fed.R. cause to initiate the criminal under ble case, (4) however, mali- Su- defendant must have acted Crim.P. In a criminal ciously. to preme A defendant is also allowed submit has that Court indicated jury plaintiff guilty to respec- [o]rderly procedure requires that acquitted, charged though even he was offense jury to tive adversaries’ views as how the in this not ask for such but case defendants did presented the trial should be instructed be to instruction. an judge to to an in time enable him deliver charge not contested. accurate and to minimize the risk of The second element was sup- committing ample It reversible error. is the rare There evidence introduced to port proba- improper had no case will verdict that Chief Powell in which instruction justify plaintiffs. of a when cause This reversal criminal conviction ble to arrest the class sup- objection no has been made in the trial court. same evidence would also be sufficient Kibbe, 145, 154, jury port a Powell acted 97 S.Ct. verdict Henderson James, (1977) maliciously. (footnotes Harper 1 F. F. 52 L.Ed.2d 203 See & omitted; 4.6, added). (1956). emphasis see Law of at 321 We no reason Torts § why case.” this is such “rare Attorney police other 66. Moore testified that might meeting. supra. have been at this See officers note the “interest in freedom It is Attorneys Zim- Attorneys present, States litiga to draw were directed and unreasonable unjustifiable Hannon from merman arrestees. against pro primary informations direct and up tion that receives filed, apparently These informations prosecut the tort of malicious from tection” Moore, Attorney United States Assistant by interests, such as those in Other ion.68 arraignments May 6 since time on some liberty, are or reputation, property, morning late or in the time began some For this reason secondarily protected.69 date.67 of that afternoon early private citizen who have held that courts informations, filing false maliciously presents Subsequent knowingly and from statements Moore obtained Attorney official, but who fails to an information Assistant United eyewitnesses, two other issue, cannot be thereby process to cause who Marcy, Attorneys Larimer States prosecution.70 malicious held liable for about stories somewhat different told police held that a has Similarly, this court re- Attorney Larimer’s events of ar unreasonably maliciously who officer Powell had some doubt port indicated without a warrant can an individual rests called and also orders dispersal proper unless prosecution for malicious not be held confu- of noise and the level question into been or indictment has an information Marcy indi- Attorney Capitol. at the sion Thus, injury where interest filed.71 in the everyone think he did not cated that malicious by the tort of primarily protected leave, but warnings to had heard crowd absent, injury to interests prosecution is police presence did think he insuffi secondarily protected apparently steps gave line at the bottom cordon the tort. support liability under cient they might be warning that arrestees a inter- Attorney apparently Moore arrested. therefore, is question, The relevant Congress congres- viewed Members trig Powell’sinvolvement whether Chief some time after personnel sional staff such informations is of gering filing of filed. On the basis of informations indepen presumption a nature that the Moore, investigation Attorney this further Attorneys is dent action United States Attorney in consultation with United States can ac a chain of causation overborne and made ultimate decision Flannery, the. traced to Chief Powell. cordingly be eight case with defendants prosecute a test the law resolving this we draw on question among from the arres- picked at random concerning liability private persons that case failed it was also tees. When In so lay police. facts before the do who charges against Moore who determined however, we intimate no view on ing, class members should be all other dropped. can be held to a whether officers these The issue of causation raised individuals.72 higher private stаndard than a novel one in this appears factors to be clear that the chain The law is begin we jurisdiction. For this reason Powell and the of causation between Chief general principles. a sketch of 67. An information or complaint from tort must be filed 72. Private individuals immunized malice, person by arraignment liability they long a arrested the time of of do not act with so . warrant; See, must unreasonably. g., otherwise court without even if statement, act e. Re- 7(a), discharge Rules of the arrestee. Rule supra g. note comment § Superior of Procedure of Court Criminal police should be accorded Whether officers the District Columbia. doubt, immunity open given broad such liability for unreasonable behavior James, Harper supra note at 1 F. & F. 68. possibility law and the that other areas 301. by reports of a crime made an officer to a inherently carry greater weight prosecutor will Id. by reports private individ- similar made than 154, 156, 70. Melvin Pence, U.S.App.D.C. given decide issue We need not this ual. Restatement, supra (1942); 130 F.2d in the record here. evidence c, 45, 653, at 407. note comment § 71. See Auerbach v. Freeman, App.D.C. 176 1915). (D.C. Cir. Thus it seems extremely doubtful that Pow- against plaintiffs informations of the

filing stated to shared the reservations Con- liability— tort ell defeating thereby is broken — Rangel with the Assembled gressman was Unit- Attorney Moore by made decision if the Attorneys. ed States or influence any pressure independent any know- Powell and Chief exerted our Notwithstanding conclusion may have misstatements which Powell ing that there was evidence from which the May evening on the meeting made at concluded that Chief jury could have Powell tend to show the record does Although 5.73 filing of informations procured ar- against persons lodged complaints to the making misrepresentations prosecut White House or the at the rested attorneys, we think Chief Powell should ing courtesy special with are handled —which prosecution new trial the malicious get a objec- respect pause some gives instructions stated jury claim. The can evaluate prosecutors with which tivity “the jury must find that defendant protest- arrested for charges against those proceeding.”76 We instituted a criminal the Pres- Congress or policies of the ing because no think this was error instruction solicitude for com- generalized ident74 —a permissible defining the limited was un- alone and quarters, from those plaints “instituted” in meaning of the word hand, is not to the events at connected sure, To be context of this case. Chief the pre- to overcome sufficient evidence not to have appears Powell’s counsel made judg- prosecutorial independence sumed objection jury below to the in a formal Attorneys. ments made United States structions, but our review of the record Powell, by Nor has it been shown Chief colloquies number of in which indicates exerted position, virtue of his official prosecution malicious was discussed with of such judgment influence over the Powell and Chief Wil special regard to both Chief however, would, son, The record the trial Attorneys. and we are convinced sufficiently apprised was issue judge an inference that Chief Powell had support protect right Chief Powell’s in now raised to misrepresented material facts knowingly appeal. meeting with the Assistant Unit- May for there was testimo- Attorneys, ed States blueprint the fur- attempting Without Pow- “very that a uncomfortable” Chief ny the malicious proсeedings ther to be had on evening Congressman Rangel ell told claim, important it we think prosecution plain- 5 “that the defendants [class resolution. points needing note two further disorderly and that were not that tiffs] so far adduced shows that The evidence crowd, peaceful but that was [there] role Attorney significant Zimmerman had a the other nothing that he could do.”75 On plaintiff procuring prosecution hand, following although such an admission this role was sufficient class. Whether 1,200 certainly persons the arrest of liability Powell of an issue absolve Chief thing the sort of that would be remem- unexplored by parties so far bered, legal elucidation persons none of the who testified awaits further factual and in the trial court. accomplished indicated that best May meeting about Second, record also indicates that reserva- Attor- expressed any Powell had of information to sources ney Moore turned proceeding tions about with informations. shown, certainly supra See, James, supported g., Harper this would 1 F. F. e. & supra 306; Restatement, judgment prosecute note note inference g. independent. comment § charged complaint case that At- 74. The 4297, JA 2166. These remarks were 75. Tr. Attorney Deputy torney Mitchell and General evening May made on the 5. The decision to conspired Kleindienst had with Chiefs General apparently prosecute was made late that eve- May deprive Week dem- Powell and Wilson early ning morning hours of 6.' or in the rights. So far these of their civil onstrators proved, although allegations have not been 23, 76. Tr. JA 2305. yet against tried. See Mitchell are to be claims supra. conspiracy been such a note 1 Had 194 Harlan, specially, indi- concurring Justice making Chief Powell before of

independent of capable of law are case. cated that “courts test Since prosecute the decision concerning against making types judgment were awarded of damages separate case defend- eight test neces- magnitude injury of Powell causation Chief given to analysis be should ants, compensation for sary meaningful further to accord major as a Powell’s role Chief rights.”78 whether Fourth Amendment invasion of a sufficient gave him witness prosecution same, course, he of Yet opined “[t]he prosecute to the decision nexus casual respect types to other may not be true with liability. tort additional such support interests, and constitutionally protected of money of appropriateness therefore the above, we vacate stated the reasons For of vary well with the nature damages may Powell insofar against Chief judgment ap- It is prosecu- asserted.”79 damages personal for malicious interest as it awards facet of the case for has language remand this parently tion right analyzing trial. whether pause new courts implied directly from of action should AMENDMENT DAMAGES III. FIRST violations of redress of Constitution for TO REPRESENTA- LIABILITY AND than the by other protected interests TIVE DELLUMS intangible Given Fourth Amendment. Congressman at member interests stake liberty class Each nature of the $7,500 for violation awarded Dellums was and the cases many Fourth Amendment rights. Powell First Amendment eq- of familiarity federal courts with of broad verdict a number challenges this Amendment viola- uitable relief for First first, there no cause of grounds: tions, identify here the is difficult to for of First Bivens redress action under Harlan. impediments by Mr. Justice feared we and that should violations Amendment Indeed, Supreme recently has Court one; second, that there insuffi- not create rein- principle the award of approved in Congressman Del- to sustain cient evidence pay relief for violation statement and back his First Amendment lums’ contention rights of First Fourteenth Amendment that, case, violated and rights were aof non-tenured schoolteacher.80 damages grossly dispropor- awarded with the explicitly unanimous Court dealt harm any possible suffered tionate apparently causation and found problem of him; and, finally, that instructions on the elements of difficulty prescribing no damages generally First Amendment a cause of action and defenses thereto.81 incorrect. Here, moreover, no there can be is a Whether there cause action causation, question of at least to class directly for violation under Constitution members. If law rights question of First Amendment is a so arrested while open fully exercising In Bivens Mr. rights far left this court.77 “basic constitutional n.9, Greenya George Washington Id. v. Univer 409 77. See 79. at 91 S.Ct. at 2011. 379, 385-386, sity, U.S.App.D.C. 512 F.2d denied, n.13, 995, 556, Healthy cert. City 562-563 U.S. Mt. Dist. School Board 422, (1975). Doyle, See also 274, 46 L.Ed.2d 369 281-86, 96 S.Ct. Educ. v. 97 S.Ct. Institute, Washington Technical 568, 573-75, Cardinale (1977). 50 L.Ed.2d 471 Two cir 123, 128, U.S.App.D.C. F.2d recognized cuits have now a cause of action (1974) question (reserving Fifth Amend damages n.5 implied directly from the First Bivens). damage LaPrade, supra action under Each ment Amendment. Paton v. note firing Yiamouyiannis 869-871; involved of a non-tenured these cases teacher, v. Chemi 524 F.2d at improper Service, allegedly reasons. (6th cal Abstracts 521 F.2d 1975). Cir. Agents 78. Bivens v. Six Unknown Named Narcotics, supra Bureau Healthy City the Federal note See Dist. Mt. School Board J., (Harlan, Doyle, supra at 2011 Educ. v. note 429 U.S. at concurring). 97 S.Ct. at 575. form,”82 United Staged and classic States. demonstra- pristine their most in rights capable attracting of First Amendment is the violation national or re- tions— the arresting attributable to offi- directly gional attention in press and broadcast broadly Dellums’ con- complaint, cers. major media-—are for better worse a or strued, First Amendment also stated a vio- vehicle which express those who wish to to the directly arresting traceable lation can dissent create a in which their forum of that gravamen officers because the com- may views brought to attention of a was that Dellums’ audience was ar- plaint turn, and, mass audience attention rested, him from thereby preventing speak- legislature. national It is facile to stated, ing recently to them. As we have is suggest that no done when a damage “ point of ultimate interest ‘[T]he up by [of demonstration is broken unlawful the words First is not Amendment] arrests could write an simply one because ”83 speakers, hearers,’ but the minds congressman individual letter to a or be- manifestly speaker will be deprived and might cause the be held at demonstration opportunity of an to affect those minds if letters day another or time. Few to con- his audience is arrested carted away. gressmen regional command a national or great Certainly harm is as if the audience. the staging And often it is speaker had himself been silenced.84 time, will, you place, theatrics —if manner of the ex- demonstration—which question This brings us to the whether press passion with which a emotion quantum damages to be awarded for demonstration, point of view is held. The First Amendment violations is administra- line, picket myriad other and the forms by the in princi- ble courts. We think is protest which our society abound in each nо less than ple damage administrable peculiarly opportunities offer important intangible awards for other pro- interests persuade, speakers may at once ac- tected or at Constitution common cuse, political or sympathy sup- seek The appre- law. interest in freedom from all in port, likely a manner be noticed. hension of immediate invasion of one’s per- of such is opportunity surely Loss an not son, protected of years by for hundreds insignificant.85 assault, law of is one example of a non-quantifiable recompense interest whose That to dem opportunity loss of an money routinely left damages jury to a of First onstrate constitutes loss Amend proper under The instructions. interest pristine rights ment “in their most and clas protected by the First Amendment in the mean, however, form”86 does not sic context of this no less case is certain of monetary be extrava recompense should quantification or conceptualization. gant. proportional award must be loss it seeks to what here involved insofar as com

Basically, is at stake is loss of opportunity express Congress intangible injuries. jury can pensate one’s policies simply dissatisfaction the laws and be set to work its discre- loose Carolina, 229, Edwards v. 82. South U.S. be held of a constitutional to the standards 680, 683, (1963). lawyer, precisely 83 S.Ct. L.Ed.2d 697 but it of this that a because good immunity broad is made faith available to Office, FCC, U.S.App. Home Box 83. Inc. unlikely, therefore, extremely the officer. It is D.C.-,-, (decided 567 F.2d March today trap unwary setting that we are for the 25, 1977) (slip op. 74), quoting A. Meikle- policeman. john, (1960). Political Freedom 26 course, right engage protest 85. Of Appellants complain that it also is not fair to unlimited, valu- demonstrations is not however subject police alleged perplexi- officers to O'Brien, may law, able it be. States v. perplexities See United ties of First Amendment (incredibly) 20 L.Ed.2d 672 which are further stated to be ab- (1968). sent in the Fourth area. Amendment This ar- gument might have more force were this a case obscenity, about false but Carolina, arrest even in supra 86. Edwards v. South note appellants’ argument such a case is self-defeat- 372 U.S. at S.Ct. at ing. readily agree We can cannot Finding sufficient to onstration. evidence platitudes about only by tion informed being objection and no Comparing princi- jury, these to the there rights. go priceless concerning the actually given jury the instructions made to the instructions ples with instruc- Dellums, find because those jury, we error we af- liability Representative to focus on jury the to require tions did not liability re- finding of and jury’s firm the by actually plaintiffs. sustained the the loss proceedings not claim for further mand this all, not, a case in which the This after is opinion. with this inconsistent altogether— thwarted demonstration was virtually was com- program the of events IV. CONCLUSION number of ar- plete before substantial action below In the analysis, the final In circumstanc- rests had been made. these trial.88 jury in mold of the classic was the es, $7,500 totally out of judgment the the a trial over course of six-week any harm that has been suf- proportion to was The evidence appeared. witnesses fered, judg- we vacate that and therefore of a starkly clashing. plaintiffs The told ment this facet of the case for and remand reasonably organized well peaceful and a First Amendment redetermination of the Mall to the and of march from damages.87 may the have been gathering steps on concerning judgment Representative The of marred a few instances misbehavior damages must also be set aside for Dellums’ peace- the fringes on the but was on whole Contrary ap- to the reasons above. stated ful, attentive, noisy and no than other more contention, however, pellants’ we think routinely allowed to use groups the Con- there was sufficient evidence that like also told purposes. plaintiffs for The gressman rights were violated. Dellums’ to civil and human of indifference testimony, which is According to his own alleged part was been rights which uncontradicted, uncontested and largely through conspiracy quiet of dissent speech cut his Representative short Dellums and preventive false arrest detention. the attempt stop mass the crowd Powell, Tamm, Chief like our Brother told just prior to that begun which arrests had disorder, intel- of week of violence and of speak- had continue speech. planned He ligence concerning plans Capi- to invade the People’s the Peace ing accepted once he fear buildings, safety tol for the of con- speech presenta- and but both that Treaty, staff, congressional and of gressmen and tion never occurred because Treaty noise, disorder, the dem- and completion the thwarted confusion arrests whether, joining May rally parties the and were asked whether should consider 87. efficiency justice, participated May Amend- interests of and First in the events of 3-^1 damages judge ment be set the trial could to the views of those who had subscribed on record far adduced at trial. participated. jury properly thus was instructed that it take should into account “the facts and dispute apparently 88. The dissent does not information circumstances available to jury properly if was submitted to case order,” gave time Powell at the he [arrest] considered, only record made at trial supra, evaluating see note 50 whether there shocking legal error in this case was the “the grounds arresting were reasonable appellate judi- trial to take failure at levels Moreover, Powell, plaintiff class. unlike Chief cial of the unfortunate acts of violence notice Tamm, apparently our think Brother did not preceded the events involved in which [had] May probable 3-4 created cause violence present case.” Dissent at-of ' May supra. note 30 Final- to arrest on See App.D.C., F.2d. While we do 214 the at ly, hardly supposed jury it can be that a drawn validity not of this remarkable concede citizenry from the District of Columbia error, pointed out claim of should outrages could to the excesses and be oblivious replete was with references vio- record May jury Yet such has held in favor 3-4. 3-4, May and disorder of lence once, but twice: not class testify fully as to his Powell allowed below, but in the criminal trial the suit also concerning intelligence the motives information July held in 1971 when memories of knowledge plaintiff his class about May all Week were fresh and well known to understanding of the events of 3-4. residents of the District. consistently queried Plaintiffs’ witnesses motives in about their cross-examination conflict, primarily cerned steps. teeming This mass of standards used in ad credibility, jury issues of went to the under the laws ministering relating to the use are, public an elaborate set of instructions which of the Capitol Grounds. Thаt portion of the part, impeccably testimony for the most correct. The is detailed and infra, principally discussed jury plaintiffs except pp. held for the 5-7 [- 75-1975, U.S.App.D.C., F.2d], 199-200 of 566 here jury’s noted No. verdict is The evidence also showed that defendants Affirmed.89 (who are members of sponsored by the

APPENDIX ^[1] tol center steps of the East Front of the Capi- Quaker while Action they Group) reading were arrested on the list Congressional Vietnam war dead from the DISTRICT OF COLUMBIA COURT OF Record. The arrests occurred when the de- GENERAL SESSIONS compliance fendants refused to leave in CRIMINAL DIVISION

CRIMINAL NUMBERS ^[2] with Powell, an order from James M. Chief 20210-69A of the Capitol Quakers Police.2 Other 20211-69A groups of approximately the same size had 20216-69A previously been they arrested when en- 20220-69A gaged in similar conduct under the same sponsorship. There is an indication that UNITED AMERICA, STATES OF these activities will continue. PLAINTIFF v. I NICHOLSON,

JOAN HART, JIM B. The entry unlawful REYNOLDS, provides statute BOYKIN A. MARY E. punishment who, HUYCK, anyone being VAN on DEFENDANTS public private or property “without lawful OPINION authority thereon”, to remain . . . 4, 1969, On June (together defendants refuses to leave on person demand of the others) with nine were arrested for and lawfully charge. applied As privately- with charged entry, land, unlawful in violation of owned this kind of law generally rais- later, D.C.Code 22-3102. days prior Two § es few difficult legal problems because trial, defendants moved to ownership dismiss the of such land ordinarily includes Informations grounds. constitutional right, arbitrarily otherwise, to curtail testimony1 The taken on the motion con- admission and use. testifying The results of our Congressman decision here and in No. George Those quickly California; 75-1975 can be summarized as follows: Congressman E. Brown of Edward York; I. Koch of New Chief of the Imprisonment: A. False Arrest and False Powell; Scott, Police James M. Lawrence Exec- respects. affirmed in all Secretary Group; utive Rights: Action Quaker B. Violation of First Amendment Bloom, liability, and David damages Clark and affirmed as to William two ob- vacated and allegedly illegal servers of the new trial ordered. acts. judg- C. Cruel and Unusual Punishment: duplicative contrary ment vacated as 2. The Police declined to arrest the three law. Congress participated Members of who in this judgment D. Malicious Prosecution : vacat- activity, although congres- waived their ed, new trial ordered as to defendant Powell immunity. sional only. joint liability Powell, and several of Chief Wilson, and the District of Columbia is affirmed. merely virtue Capitol Grounds

from only if he had the position of his official trespass statutes application interest in and greater complex- proprietary kind of presents same land government proper- government the United species control over States ities. Some and those respect of executives ordinary the offices householder has g., ty —e. workers; con- government many clearly other he does not. his own home —which chambers; fa- or research scientific C.I.O., at 514 Hague supra, ference See cilities; warehouses of valuable storage ejection 954], He can order [59 to be as immune entitled commodities —are right to be legal of those who have no not wanted invasion one from there. realty. But there private as is premises words, these defend- the order to In other public government types other land — it was only if based ants to leave was valid sidewalks, and historic streets and parks, on and additional to than something other may ordinarily not landmarks —which or the itself the statute entry unlawful reasоnable use. See public the closed to other And Chiefs official status. 515-16, C.I.O., 496, 59 307 v. U.S. Hague by prosecution authority source of cited v. 954, (1939); 1423 Marsh 83 L.Ed. S.Ct. statute, D.C.Code Capitol is the Grounds 276, 501, 66 90 Alabama, Thus, meaning 9-118 to 9-132.3 it is §§ Louisiana, 379 (1946); v. 265 Cox L.Ed. Grounds validity Capitol and the of the 453, 471 13 L.Ed.2d 85 S.Ct. U.S. (1965); Shuttlesworth U.S. (1969); 89 S.Ct. Gregory v. 89 S.Ct. 22 L.Ed.2d Chicago, 394 v. Birmingham, 394 22 L.Ed.2d 162 (1969). U.S. statute which are unlawful entry law adds really at issue here —the ^[4] nothing.4 ^[3] II States, a na- Capitol argue United Defendants the statute cen- political shrine and the tional historical for that reason unconstitutional. vague and is in the latter terpiece Republic, Louisiana, of the Wright Georgia, v. supra; Cox v. off limits may It not be declared category. 284, 292, 83 S.Ct. L.Ed.2d U.S. Indeed, Congress invites people. Jersey, v. New (1963); Lanzetta public. and welcomes the (1939); Connally General Con 385, 391, 46 S.Ct. Corp., 269 U.S. struction invita- general In view of the broad and (1926). 70 L.Ed. preem- to this citizenry tion extended to the surrounding and the inently public building anyone “pa- 9-124 to D.C.Code forbids § could not be grounds, individual citizens stand, rade, or as- processions or move in authority lawful to to be “without held display . . . or to . semblages thereon”, within the remain . . . banner, or any flag, designed or device statute, entry unlawful meaning of the bring public any par- into notice adapted to other, specific bar to the absence of some except as ty, organization or movement” presence. their the House and permitted by Speaker not, for “occasions legally, could be an order the President of Senate That bar becoming cogni- interest Police issued on of national Capitol the Chief of (D.C. Congress” Powell would entertainment of authority. his own Chief zance and ejected 9-128).5 someone power have the to order Code § determining whether der the two laws in in 40 U.S.C. can also be found 3. That statute occurred. violation § statutory prohibi- power suspend the 5. The to that no one is arrested Powell testified 4. Chief upon permit other officials the ab- entry tions devolves who has a unlawful law under the statute, Speaker Capitol and the President of the pursuant sence of the Grounds to issued applied are un- Senate. “identical” standards and that 'steps approximate- talking on the group might not be in might an half hour 128) ly section (particularly The statute obey interpreted those if its members refused violation sufficiently broad leave; lend itself are made on its enforcement6 decisions charged with order Moreover, according to than application. selective basis rather case-by-case the standards imprecise, fluctuating, actually ^[5] employed have and unavailable been precise internal general rules. inconsistencies ^[6] revealed further testimony Chief Powell’s are com- public. plicated by position the fact that others in Powell, enforces the who know his contradicted some of assertions. statute, questioned at some Grounds understanding his length concerning permits Chief Powell are stated re- He that enforcement. governing regardless standards quired group; of the size of rules; are no there written testified that Sergeant Schaap of the ‍​​​‌​‌‌‌‌​​​​‌‌​​​‌​​‌​‌‌​‌​‌‌​​‌‌​‌‌‌​​​​‌​‌​‌‌‍Police Force writing; usually permits likewise (in testified proceeding) another no way public members groups of as many persons as ten may might be in violation knowing whether assemble without members of permit; except violations how to avoid law or Peoples Poor were allowed Campaign inquiries byor to Mem- by prior experience grounds groups twenty; press or members Congress bers reports in large indicate that demonstrators Force;7 applicable rules to the Police the Representative numbers supporting Adam applicable to those identical grounds are not the Clayton permitted steps Powell were on govern which the use to the and those steps, because Chief to permit Powell had “orders those applicable some from steps of differ demonstration;” the and on the occasion of for assemblages any pur- steps; to other no Quaker arrest, an earlier fairly four other steps the without a on pose are allowed freely sizeable groups permitted were students and other permit, high but school in the gather vicinity. do need a sometimes not groups undefined of Chief Powell maintained Members the steps on for permit they if assemble require group gather- for Congress permits taken less which are more or photographs steps everyone like else. ings Capitol or within fifteen minutes “spontaneously” Brown Representatives George But E. and so; allowed to meet in are groups or such that permits Edward I. Koch both testified uniform, Party, the American Nazi but not occasions; required are not on such not, the American possibly, possibly and groups by “innumerable” such are invited8 may flags and not be de- Legion; banners Congress steps; by Members of to the organization “non-political ployed, but a “it has required custom never been one might permit- be pro which no or con” banners; this;” and that these relatively permission small ask to do display ted to But, infra, appears (presumably in the 7. as at least some Members These reliance on officials Congress” clause) Congress Capitol Police “becoming of and some officers . . the . proce- exception with as to the correct contained in sec- differ Chief Powell have construed the standard, they may proper authorizing permits the dure and them issue tion 128 as relatively pedestrian great many also differ with each other. assem- for taking photographs blages, of on as the such Attorney General, steps. Capitol guest The suggest the of 8. Defendant's that as one or hand, interpreted provi- the Congress they has same the other more were not sub- Members of permits only justifying grant prosecution of for ject sion as under the statute. The quadrennial as the prepared “such official ceremonies is not to find that waiver Court inauguration power granted Speaker the President front of of and the Vice Department Capitol.” by delegated by of Justice Brief of 128 has been President section Brigade Members, practice Rankin v. Chief No. Jeannette custom and to individual (D.C.Cir.) p. when, here, Speaker particularly of Police refused, grant requested, a waiver. but

[8] place constantly at the sole take activities be structure by laws can Broad discretion and on But patterns consistent administration. law is presence one to that, when these defendants congressional who practice sole volved.9 applied The conclusion is Congressmen who were (although participated authority administered, know vagueness of may and the of his also be whether immunity). selectivity group, on inescapable the same specifically it is ^[7] illustrated his impossible Congressman presence, with administrative conduct, that, waived which it is them arrested, the fact Hill is or the as the any- in- (1945).11 statutory tive invalidity.10 L.Ed.2d 302] Baxley, individualized tional add It enforcement to its uncertain substance shape record, remains to has failed strength. Compare evidence, construction can to this law has (1958). Cf. Screws v. 65 S.Ct. decision-making' done of this 313, 322, provide nothing arguments, determined law, thus give Staub [78 United as revealed 89 L.Ed. 1495 with more than to save it more defini- —a grains constitu- and the whether process City States, from by materials background indicate three or unlawful. There no set of lawful conceivable, rules, lines of construction are two orders, or standards regulations, consult, precedents predominant patterns indicated which he can administration, contradictory other several indicia administration themselves congressional history understanding. and uncertain. suggested remedy Powell’s —that Police Force be member of Ill prob- not solve the asked for advice—does to one side the aberrations and Leaving lem, First, the two evidence reasons. testimony ambiguities, sug- Chief Powell’s exists that is fol- that no set standards that, gests insofar as of the enforcement of Force. lowed all members concerned, Capitol is Grounds statute Second, in a fundamentally, and more persons generally of are classified groups laws, regulation of government the of con- categories. into three broad The first is the conduct in sensitive particularly duct — comprised and some of school children oth- covered the First Amendment— area ers permitted gather who are such predicated must be on a set of definite “spontaneous” the of rules, taking of officers. activities as opinions not on congressional repre- with their Louisiana, photographs at supra, Cf. Cox v. U.S. without sentatives S.Ct. 843]. [85 far, significant sup- Congressmen there has is 10. Thus been no court version of the two 9. The Capitol ported by photo- Grounds statute. A number of construction other evidence. Brigade Capi- showing persons See Rankin Chief of large groups Jeannette Police, graphs of (D.C.D.C.1968). F.Supp. tol steps appears Capitol It introduced. also testimony also, See of United States Attor- occasion, that, Capitol least when on at one a ney before Senate Subcommit- Grounds, David Bress away, group a officer about to order Police Buildings infra tee on and note Public that a desisted when he learned Member he Congress 8). Thus, p. present interpre- (Hearings, from was with them. And letter being relatively tation is written on a clean Kirwan, Representative chairman of Michael J. judicial is con- to a con- slate insofar cerned, construction Congressional Democratic National Com- the mittee, impediment is and there no Congressmen Democratic advised all will which save the statute. struction photographer an would be availa- official Capitol steps daily for ble on the for four hours “ are . . . we view that if [the groups photographing Members with of con- narrowly is confined than more statute] stituents. it, preserved confined it be lower courts can (325 1035). at . . .” . power permit or to dicial —can have necessity second are “noncontroversial Upon waiver how well behaved its members. impossible in the third waiver, deemed ble on the constitutional Senate, The standard of request, category no matter or to be controversial for a waiver or both, category application. Speaker, even-handed, thеse permitting consists of how small the Grounds. noncontroversiality13 is ^[9] groups the President of the them to assem- or impartial, Those who are are refused a non-political.” groups permit. The are political group12 which are or putable, serve as a too prohibit assembly sion. siality controversiality tutional sial more. troversy with Chief Powell is In the first stand easily equated is as entitled to be heard as the indis- people on Beyond is values and simply public solid short, place, based on his notions it .dissent. that, issues not basis for this kind may standard on for several principles. compatible sufficiently tangible lack of property belonging may concept need orthodoxy, Yet be controversial. employed by controversy of controver- hearing reasons the with consti- controver- and con- of what deci- far person may one consider well set- What IV may highly con- beyond

tled and debate to another. Even students— troversial government suggests, alternatively, whom Chief Powell considered the least may be that distinctions scarcely always all—are controversial of being in the administration of the are made that, age college high in this school law their roots not in Capitol Grounds and confrontations. With demonstrations political particular coloration of controversiality yardstick, as the who would activity they groups type but in the permitted and who would not be to assem- Capitol. they at the If engage while Hill —an stu- organization ble visitors, said, they it is come as tourists or radicals; equal dent an number of middle- permitted gather; if come men; organiza- of-the-road or an fraternity sign or engage persuasion by speech tion of militant young conservatives? Is assembly, presence prohibited. their group advocating segregation more contro- This, perfectly is a prosecution argues, preaching versial or less so than one inte- constitutionally unobjectionable proper and housing?14 organization Is grated per- practice. But this restatement

[10] mit policy amounts to but another way saying that the more or less the Vietnam conflict protesting the supporting than another controversial [H] war?

The answers obviously depend the upon except are to all those who open Grounds point of view of person the making seek to use them for the exercise of First determination. That, however, rights. Amendment is a standard, constitutionally impermissible system, no

But under our constitutional -executive, ju- under the First Amendment but also legislative, only public official— candidly acknowledged just that “I’m not sure testified that in the instant sit- 12. Chief Powell expression reading of war what ‘noncontroversial’ is.” the names uation —of Quakers Congressional Record —he dead from evidence, According 14. at least one if an order to leave even would have issued group gathering recent Grounds group, only single person, a a rather than insignia. included someone with an NAACP Also, been involved. 6, p. supra, members of the Poor as noted Peoples Campaign on the Although term in his were allowed Powell used this classes, assemblages. testimony he the various Grounds to delineate 202

regard elementary most forms of discourse, especially important civilized it is of the Fifth process clause under the due peaceful persua- and courteous speech Amendment.15 rightful chance. sion be their It circumstances, mem- compelling Absent indeed, be if our constitu- strange, may not be excludеd from of the public bers system, especially tional First purpose to use of their public areas because Amendment, to countenance the con- of First Amend- for the exercise these areas Hampshire, v. 312 rights. gregation grounds occupied New on the ment Cox 762, 85 1049 569, legislature groups 61 S.Ct. L.Ed. of all manner of U.S. national 268, Maryland, v. 340 (1941); speak peace- U.S. except Niemotko those who wish to out 325, (1951); 267 Food 95 L.Ed. 71 S.Ct. fully day. on the controversial issues of 308, 315, 88 Logan, 391 U.S. v. Employees That is not the set the Bill mark v. (1968); Kunz 1601, L.Ed.2d 603 20 S.Ct. Rights. 312, 95 290, 71 S.Ct. York, U.S. 340 New that Mr. presumably It is for reason States v. cf. United (1951); 267 L.Ed. Stewart, for a near-unani- speaking Justice 1673, 20 367, O’Brien, 88 S.Ct. 391 U.S. Court, Supreme' held in the control- mous v. Stromberg Califor- (1968); 672 L.Ed.2d Carolina, case of v. ling Edwards South 372 532, 359, 75 L.Ed. 51 nia, 283 S.Ct. U.S. 680, (1963), 697 229, 9 L.Ed.2d 83 S.Ct. U.S. parks For the streets (1931). demonstrations that non-violent held in trust for immemorially “have been grounds Carolina South State and, mind, time out of public the use of the constitutionally protected from inter- purposes assembly, for been used ference,16 and reversed breaches of the citizens, thought communicating between Negroes peace protesting convictions of 187 public questions.” That use discussing against discrimination. not, alleged there “but it must in the may regulated be abridged or denied.” guise regulation, any question Lest there be about what 515, C.I.O., supra, Hague v. 307 U.S. at Edwards, meant in Court removed reasons, at For and be- S.Ct. these Adderly that doubt years three later in rights occupy Amendment cause First Florida, U.S. S.Ct. “preferred (Saia York, v. New position” (1966). case, L.Ed.2d 149 In that in up- 92 L.Ed. U.S. 68 S.Ct. holding assembling a conviction for not far (1948)), government is on the the burden jail, Supreme from Court drew a compelling cir- establish the existence sharp distinction between such a meeting cumstances, restriction. justifying and one held to a housing close structure Button, 438, 83 NAACP v. (1963). 9 L.Ed.2d 405 S.Ct.

[12] ^[13] legislative A body particularly (385 legislative body. could not Said Court Edwards, permit innocuous, to it of 244): access at “In peaceful, controversy reasoned and de- went to the Carolina demonstrators South bate are very lifeblood of the democrat- protest. In this State Grounds process. ic jail. went to the Traditionally, case confrontation, capítol grounds open public. state

In this violent day demand, Jails, harsh, non-negotiable security purposes, the dis- built are not.” 16. The 15. brief the due U.S. Shapiro Unjustifiable 497, 22 L.Ed.2d 600] Department of Rankin process 74 S.Ct. interpretation Thompson, (see discrimination is clause. 693, supra, ^[394] (1969). Justice Bolling of Edwards. note L.Ed. 884 appears 6) v. ^[618] prohibited Sharpe, [89 Depart- (1954); In its agree by being ment structive small It follows denominated small “that interprets denominated an unlawful groups peaceful petition may breach of groups peaceful not be teaching may petition not be abridged by being peace” (Br., of Edwards non-obstructive entry. abridged non-ob- p. 2). be original purpose of section when was not to all contro- enacted bar distinguished be from the Edwards could groups keep Capitol versial or to from the theory on the only instant situation except visitors, all Grounds tourists and but right speak, Amendment there is a First prevent “to only occurrence near [the assemble, legislative near petition and State Capitol] of such disturbances as are incident right no to do so near the buildings but orderly to the use of public streets and of the buildings occupied by Congress 126. places.” Stat. war- Not is there no United States. logic history rant in either or for such a companion Recent amendments to the distinction, up- to make it would turn but section 123 and their legislative history in- down both the constitutional and the side congressional dicate that the view concern- realities. practical ing scope regulations of conduct on Capitol significantly Grounds has not protects The First Amendment changed since 1882. speech, assembly, peti- free rights to 123 was amended in 1967 Section to es- tion, primarily Congress, is addressed to the specific carefully tablish a number of it applied has been only by implication prohibitions circumscribed with respect also, the Fourteenth Amend- by way of activities in the Capitol Buildings and on Moreover, ment, day in this to the States. Capitol Grounds.18 influence, power and great federal is, impor- if more right petition anything, In the course of committee consideration to the federal authorities tant in relation which, of the bill19 with some modifica- governing it is in relation to the bodies than tions, present became the section Sena- short, Edwards of the individual States. tor Jordan chairman of the subcommittee here a fortiori. applies .conducting the hearings, quite made clear very at the outset reasons, these the statute could not For poli- to enforce a constitutionally applied

groups controversial seek cy to exercise First Amendment keeping persons in character or because off merely because Capitol they Grounds rights.17 they can transact that what was intended was to quate safeguards “to its business and ^[15] insure that provide perform Congress ade- its ^[14] constitutional functions in an ner, without interference,” orderly at the man- same V guarantee time “to in- there is no fringement rights people of the . possible The other line of construction of to assemble peaceably petition and to history legislative the law rests on and stat- for a grievances” Government redress of It utory development. solidly is not 1). (Hearings, p. grounded practice in administrative or actu- use, reasons which will be yet, Tydings similarly al devel- Senator drew attention below, purposes, stating it is the one to be followed. to these dual that what oped Columbia, sweep Feeley 18. If 124 were as broad in v. District of 220 A.2d 325 section its is, contrary. prosecution many (D.C.App.1966) is not to the here believes appellants court’s conclusion there that the 1967 amendments would have been unneces- Indeed, sary superfluous. right present no to be where were arrested one the new anyone predicated provisions “parade, demon- on a record which did not dem- forbids strate, picket the record here does—that other within onstrate —as Buildings” (section 123(b)(7)) (emphasis groups using add- Grounds. Be- that, ed), respect yond Feeiey but it is silent with court’s comments con- Grounds. (see cerning section 124 were dictum Jeannette Police, Brigade note Hearings Rankin v. Chief before the Subcommittee on Public 234-35)) supra (278 F.Supp. at and its deci- Buildings and Grounds of the Senate Commit- U.S.App.D.C. Cong., sion was later reversed. 128 Public Works on S. 90th 1st tee on (1967). 21, 1967). (September 387 F.2d Sess. 204 466, (1936); 80 L.Ed. 688

345, 56 S.Ct. language 474, “which 79 S.Ct. McElroy, 360 U.S. was needed v. Greene right peaceful of States (1959); the reasonable United protect 1400, 1377 3 L.Ed.2d demonstration, at 808, but 612, 618, or Harriss, 347 74 98 picketing S.Ct. U.S. v. power promul- to give States, time would the same v. United (1954); 989 Screws L.Ed. pre- to so as regulations” 1031, reasonable gate 100, 89 L.Ed. 91, 65 S.Ct. 325 U.S. provisions the criminal of Smith, vent violations v. 390 U.S. (1945); Schneider 1495 of the orderly functions the protect to (1968); L.Ed.2d 799 19 17, 88 S.Ct. 19).20 (Hearings, p. branch legislative Harris, U.S.App.D.C. v. Bolton (D.C.Cir.1968). F.2d 642 mind, too, that while be must borne It the statute of practices enforcement the partiсularly is im- rule Adherence to this the contro- in terms of been described context. many portant present the Too under- dichotomy, versial-noncontroversial bodies, the an- from Senate legislative practices of those some lying least of Dep- French Chamber cient Rome to the the security the of desire to assure the times, pressured have been in modern uties distur- interference Congress from hostile to demo- by groups intimidated original of bance, purpose the in line with anyone government for cratic forms of the 1967 reason for the statute and danger poten- that such oblivious of the be noted Finally, may amendments. reason, presents. intimidation For tial Appeals of Court the District of Columbia care must be exercised not read special (Feeley v. District concluded recently vacuum,21 if it is at law so as to leave Columbia, 17) note supra, possible all to do so. Grounds terference with the work turbed movement of tourists and duty rule of and the in volume with the statute was tice, somewhat trolling weight, and administrative While, maintenance of statutory construction protection should nevertheless be confused, Court to course, designed in view of the purpose these bits of ^[16] adopt longstanding, administrative guarantee landscape. free do construction, and undis- legislature, paramount legislative compare it is the visitors, though nonin- prac- con- if so punishment for acts or conduct which inter- feres with the gress, or lators, or their undue sufficient section materials I limited, conclude pressure, staff right with the discussed under basis the statute members, visitors, to be orderly processes noise, or safety restricting ^[17] free VI imposition legislative inconvenience. As from V supra provide is constitutional. individual intimidation, of criminal of the Con- or scope tourists, legis- other therefore, It under the so, appropriate, possible it is to do which will save statute, bar or to order from the unconstitutionality, statute from rather Grounds, violent, any group noisy, one result in its destruc- which is than which would behavior; Overholser, armed, Lynch disorderly tion. or group v. S.Ct. has (1962); purpose L.Ed.2d Rescue which interfere with the Court, Army Municipal processes Congress, any 331 U.S. Member of 568-575, visitor, Congress, congressional employee, 91 L.Ed. 1666 tourist; T.V.A., (1947); any group effect, Ashwander v. or which has the indicates, Capi- Report on the 1967 Senate Committee 21. As discussion above necessity emphasized amendments likewise tol Grounds statute can be saved from total safety invalidity only interpreted narrowly, for the order and if it maintenance con- sistently prevent designed impede, original purposes. need to dis- with its “acts rupt, orderly disturb conduct Na- (S.Rep.No.578, Cong., tion’s 90th 1st business” Sess., 7). p. immunity depends upon “the ex-

ty. That grounds reasonable for the belief istence of with the interfering presence, its by light time and in of all the formed at the any Member Congress, processes circumstances, faith coupled good with be- visitor, employee, congressional Congress, Rhodes, v. lief. . . .” Scheuer damages tourist; which any group or (1974). 247— shrubbery, or buildings, of the part any claims that he had reasona- Chief Powell life.22 plant were in plaintiffs faith belief good ble per- be prosecution will Accordingly, the statute, Capitol Grounds violation of first, open- of an by way, to proceed mitted he (1973), and that D.C.Code § to do so. If that if it wishes ing statement to arrest them. privileged therefore which outlines evidence statement opening a conviction based justify faciе prima A. down, the trial laid on the standards here with which The elements of offense con- government If the forward. go will statute is concerned Capitol Grounds opening an is unable to make that it cludes Judge opinion Greene’s are set out acts which would outlining statement Nicholson,1 opinion United States ^[18] which Chief Powell was thoroughly famil against to protect arbitrary iar. In order the statute as offense under constitute an rights, interference with First Amendment herein, if the Court should or interpreted language held that the broad Judge Greene state- hearing opening after conclude subjected of the statute would have be stated, been no offense has ment construction, Capitol limiting so dismissed.23 charges will be order from” the Police could “bar or Harold H. Greene /s/ which were groups those Grounds Judge Chief armed, violent, disorderly or in be “noisy, 19, 1969 June havior”; had the or effect of purpose interfering processes with the of the Con concur- LEYENTHAL, Judge, Circuit Congress, congres gress, Member ring: tourist; visitor or or which employee, sional court, judgment in the I concur buildings plant or damaged any part written opinion in the generally concur Greene not ings. category, Judge In each opin- in this I undertake Wright. Judge ed, to be more “the conduct would have the critical I view as on what to focus ion (in degree or num disruptive or substantial the case. aspects issues ber) normally engaged tour than that I routinely permitted ists and others n. 22. In grounded Slip. Op. in un- the Grounds.” defending this action detention, Powell, addition, Judge Wright’s opinion more lawful arrest and Police, explains, both law and basic fairness fully chief of the United States previously per dictated that before persons to a directed verdict on claims entitlement to assemble on the Grounds qualified of a official immuni- mitted grounds sembliés, activities, picketing category, and demonstra- the conduct would have to In each (in tions; disruptive prescribe display more or more substantial de- limitations on the be normally number) engaged banners, gree signs, flags, symbols; than that or or other routinely permitted and others and tourists prohibit amplifying or limit the use of sound on the Grounds. may disruptive or conduct which devices process disturbing legislative present stat- construction of 23. The Court’s area). unique peace and the character of the is, course, congres- prejudice to without ute standards, specific adoption of more sional (D.C.Ct. 1. Nos.20210-69A et al. of Gen.Sess. as, suggested by example, those Unit- such 19, 1969), aff’d, (D.C.App. 263 A.2d 56 June during Attorney Bress the 1967 David ed States 1970). times, specify (to require permits; hearings locations, size, parades, and character of as- tors were also using arrested for violation of the stat sound equipment could be ute, through disper must be notified crowd.) A reporter address testified permission their sal order that to assemble that Powell, Chief initial making after his Louisiana, has been revoked. See Cox v. announcements, had turned to Chief Wilson ff., (1965). thought many people said that he had leave, not heard the order to and asked question The as to whether Chief Powell thought Wilson if he the order should be good had a reasonable faith belief that he “No,” given again. said, Wilson “let them complied requirements had with these was (Tr. 820, tell their story court”. fully App. at explored presented trial. Plaintiffs 645). m., testimony tending began p. to show that The arrests at 3:26 while theirs was a reasonably orderly meeting, not disruptive Congressman Dellums speaking. was On of thе affairs of Congress. Plaintiffs’ wit- the basis of this much other evidence plaintiffs nesses testified that had assem- way conducted, about the the arrests were proceeded bled on Mall and along the the plaintiffs argued jury to the that sidewalk to the Capitol, stopping at red one, reasonably orderly crowd was a lights. group When the by was halted In- a good Chief Powell lacked reasonable spector Police, Xander of the Con- faith group belief that the was in violation gressmen Dellums and Mitchell and Con- of law. gresswoman Abzug informed him that they Powell, given Chief was part, his group invited the to meet with them on full opportunity group to show that ‍​​​‌​‌‌‌‌​​​​‌‌​​​‌​​‌​‌‌​‌​‌‌​​‌‌​‌‌‌​​​​‌​‌​‌‌‍the the House steps, and prob- Xander said “no a disruptive one and that he had acted lem”. Witnesses testified that as the Con- reasonably good and in faith. Defendants’ gressmen spoke to the group, group during period witnesses testified listened, cheered and applauded. An As- prior congressional addresses the sistant U. Attorney S. testified that there group engaged in loud chanting, singing was no violence time during the and shouting. There was testimony also afternoon. Metropolitan Police Captain Al- that some members of the group pounded bert Ferguson remembered as “a fairly windows, on Capitol painted doors and mild (Tr. 3480, demonstration” App. 1846) walls and climbed on Wilson, and Chief Chief of the District of lamp posts. One member of the group dis- Columbia Metropolitan Police Department, robed; others waived Viet Cong flags. a defendant action, in this admitted that apart from the fact plaintiffs that the were Chief Powell testified that he attempted blocking the steps Capitol, “it was a to warn the demonstrators on several occa- reasonably orderly (Tr. crowd.” App. they sions would be if they arrested 962). “There speeches were some going on did not disperse, but that when he ad- and a particular few said, misbehaviors” he crowd, dressed the the level of noise in- “but generally it was not a bad crowd.”2 creased so (Tr. as to drown him out. Id. 1959, App. 1176, 1182.) One arrested

At m., plaintiff named approximately 3:15 or'3:20 admitted that he had p. heard Powell gave (Tr. announcement repeated App. 457), over and a his bullhorn an order to disperse. that, policeman view, Plaintiffs’ witnesses testified in his testified that although in they some cases demonstrators had no intention leaving saw bullhorn, Chief Powell up hold his they steps, they even if had heard the an- did not hear (The what he said. demonstra- (Tr. App. 1895). nouncements. Ways 1348). The House and Means Committee was He testified that the Committee was meeting just steps group complete inside the where the able to interrup- its business without Minority suspension, located. The Counsel for that tion or and that it was “not uncom- Committee, who was called to the stand mon” for the Committee to hear noise constitu- defendants, ting “problem” said that milling the noise from the crowd from tourists about in steady amounted 2172-73, to “a (Tr. hum” and that App. 1358-59). the corridors. (Tr. App. chants were “a little louder.” the context of this case” order.” “In sum, opportunity sides had an both required prove also concerning the behavior defendants were evidence present demonstrators, the effect on Con- off” “were fact ordered demonstrators police. the actions of gress, and and that were property, they half weeks. six one trial lasted off or on and getting staying “choice testimony heard from total jury court and “ignored and that being arrested” witnesses, twenty whom seventy four knowingly”. order A total of nine called defendants. instructions, Guided these and other introduced, documentary exhibits day. than a jury deliberated more of the demonstration.3 including pictures in verdict they The substantial returned the jury submitted to with The was case that favor of shows the plaintiffs'clearly the issue of instructions on very extensive character- plaintiffs’ the the jury credited told that under jury The was immunity. question. of events in ization the the could or- case authorities the Nicholson very exploration full In view of the der the Grounds: from trial, of the the direct clash these events at was more any as whole which group evidence, instruc- complete the fair and in behavior disorderly or noisy violent no issue, this I see jury tions to the on can the normally permitted on than is jury’s overturning the principled basis had a Any pur- which grounds. group immunity. on issue of official verdict this process with the Con- pose to interfere of the quintessential^ the function It congres- Congress, gress, any member of com- credibility and resolve jury assess or tourists. employees, visitors sional It is tradition- disputes. factual also a plex by which the effect its Any group judgments jury al the make function of processes the interfering with presence con- as to the of an actor’s reasonableness thereof, any or member or Congress both, was to do jury duct. Here the asked Any group or any employee visitor. decision, inso- its both respect and we must any building, damages part of what took as it the facts far determines The plant or life. behavior shrubbery of reasonableness place the issues can be char- group such that the must be defendants. plaintiffs conduct of both person, one as a whole. If acterized might persons several who or even if course, reaches be- jury’s if a verdict Of in an un- participate identifiable easily evidence, with a result yond the reaches behavior, justify this not char- lawful will concur, judi- man which no could reasonable to be acterizing group group as a dis- But justified. would be cial intervention persed. case. were that is not this Plaintiffs clearly in then that “if evidence was instructed able to introduce voluminous jury good reasonably faith and Chief Powell support points of their that the demonstra- group Capitol steps the the believed that warnings were orderly tors and that the as be characterized one of properly could were not heard. Even of the defend- one ease, described in the Nicholson groups the this “not a bad ants was commented justified ordering was then Powell Chief verdict posture, jury crowd”. In this Chief Powell was entitled dispersal.” their plaintiffs must be sustained. “traditional sources informa- rely on jury’s tion” determination as to B. “not reasonably he acted was to be whether on a insist Similarly, Chief Powell cannot hindsight, but rather facts based on faith ground good and the information directed verdict on and circumstances Judge As gave Powell at the time he reliance on of counsel. available to advice trial, pro- produced. Inspector Robert was 3. A film of demonstration it was Krohling Department tes- by government the 1971 criminal Police duced Although de- had been tified he understood that it trial the demonstrators. stroyed. App. 1929). plaintiffs (Tr. subpoenaed for use clear, length plaintiffs of time were held instructions made jury Bryant’s upon complete and the treatment and conditions of deten- disclosure depends defense they subjected, they attor- tion to which if advising facts to of all material presented testimony falsely imprisoned.” App. were in fact plaintiffs Here ney. the Form of Working Powell had been in- with Verdict although court, jury designed by of the House not to the district Speaker structed damages along sliding as able to award scale long arrest the demonstrators account, rough way, took into in a addressed members of Con- which being 2555-56, 1563-64) experiences the different of different mem- (Tr. App. Powell gress, class, losing that fact to the at- bers of without administra- had not communicated tive feasibility. he now claims to be torney on whose advice 2045). (Tr. 3904, Powell ar- relying. App. permitted orders B.

gues Speaker’s group orderly, if the was not arrests jury to cru- respect instructions with that, event, those orders arrived el and punishment unusual were not so well Powell had consulted the assist- after designed. place, they permitted In the first attorney. ques- ant But factual district damages duplicative of awarded for those judg- tion was said and value of what false arrest The imprisonment. jury and sequence whether the of events ment as to was per- entitled to consider “whether the excused Powell’s nondisclosure were not for sons charge ... in used excessive decide, but necessarily ques- the court and unnecessary physical dealing force in jury. tions for the them, whether or not were they fur- nourishment, adequate nished whether or

II not were furnished with adequate conditions, I do deficiencies in the shelter find instructions under reasonable bed- on The damages. jury returned verdicts ding App. and toilet facilities.” 2308. The plaintiffs monetary damages for for totall- jury was also instructed to consider “the $12,000,000. this, ing (the an estimated Of purpose plaintiffs) for which were de- $7,500 largest item was an award to each tained” “the of time length during and class Congressman persons subjected member and to Dellums which these were to these for violation of first rights. assessing damages amendment in conditions” for the jury The also awarded to each class $500 violation. Id. While these instructions for cruel punishment, member and unusual might have been reasonable in the circum- case, here, and to each class member for $50 malicious stances of another where the prosecution.4 Lastly, jury plaintiffs already damages awarded received for damages for false arrest imprison- and false “length of confinement and conditions of ment on a variable scale: for 12 hours or detention” under their claim for false ar- $120; detention, rest, less for 12 to 24 hours in I do not think that these instructions detention, $360; for 24 to 48 hours of deten- adequately focused on the “unusual” as- tion, $960; and for 48 to hours of deten- pects plaintiffs confinement. tion, $1,800. A why per plain- second reason the $500 tiff award cannot stand is that individual

A. plaintiffs greatly'dif- were confined under challenge Defendants do not fering scale on conditions. As is clear from the damages for false arrest and impris- awards for false imprisonment, some mem- jury onment were awarded. The was in- bers of the class were detained for substan- that, determining structed “In damages for tially less time than others. One-half of the false imprisonment, you may consider both block, class was not taken to the cell D.C. eight'persons prosecution The who were defendants awards for malicious on substan- grounds, the 1971 criminal damage trial received an additional tive I do not discuss the as- $3,000 apiece. pects. Because the court vacates the perspective, instructions in- From most apparently conditions where provided inad- jury in this case those among even appears It humane. was jury simply told guidance. equate location, may there same imprisoned experience in its apply judgment “to in terms differences significant have been for the loss determining compensation fair medical at- bedding supplied, of food into consideration all rights, taking of such force, etc. Under tention, use of physical surrounding and circumstances the facts circumstances, was a uniform award these This open-end- App. the violation.” inappropriate. jury did not inform ed instruction reasonable in its obligation it had an to be C. award; that its verdict should reflect $7,500per verdict of finally to the I turn plaintiffs oppor- to the lost the value of first amendment person infringement expression. The assembly tunity the first amendment Ultimately rights. into account the told to take jury assembly and free speech get of free mes- rights plaintiffs to which did their extent them put must be inci- price But a priceless. through totality delivered sage That ver- litigation. dents, signs and including speeches, the context of civil guided prior reasonable and must be as demonstrations effected dict of a intervention, for violation media coverage An award and the any other. must commensu- right such incidents. first amendment plaintiff of the value rate with addition, the vagueness the instruc- must jury lost. The has been right im- jury room for the consider tion left extent to which account the into take $7,500 ver- factors. size of proper impart- actually impeded plaintiffs taking account —particularly into dict messages. speaker If a receiving ing compensation for separate there rights, but was to exercise his able was suggests arrest unlawful and detention — length manner or confined in the somewhat may an of there have been element that views, an then his presenting time for of jury’s punitive damages in the award. as it be possible, is still but cannot award punitive damages. no for prayer was There from entirely if he were frustrated much as However, because the district court’s in- damages for has action expression. Every no on the discre- jury’s set limits struction deterrence, in the but potential for some the (and no instruction on separate tion calling for special circumstances absence damages giv- availability exemplary of the the amount exemplary damages, its jury have assumed that en), may the compensation, on should be based award possibility puni- the authority included punishment deterrence. of this damages. In the circumstances tive case, a class and an other- involving large damages the be- Although fact damages first on for wise broad instruction does large of a class ing sought behalf violation, the district court amendment the class not mean each member of a steps to avert explicit taken should due, is a receive than his should less award.6 damage the punitive element in of in- for in the formulation reason care a distor- that the type, possibility In of this Also the disturbing structions. cases damages to individu- for men- might in the size the award have included jury tion I may suffering. recognize thousandfold. plaintiff magnified al be tal distress for develop plaintiff suing violation to individual special is therefore a need an There issue, is not rights amendment limited first damages instructions on precise a may, upon but out-of-pocket expenses close to undertake special obligation showing, recover emotional proper upon review. scrutiny appellate by requested See, Barry, F.Supp. De- g., an instruction was 6. Such e. Manfredonia v. 401 (E.D.N.Y.1975) Powell. Instruction No. A. at 202. cited fendant 770-72 and cases therein. the arrests and subse- Louisville, precipitated which City of harm. Glasson Cir.) (McCree, J.), cert. (6th eyes po- quent F.2d confinement. In denied, lice, Capitol steps on the assembly Reinbold, Donovan v. (1975); L.Ed.2d organizers by of a concerted effort part 1970). But in the Cir. (9th 433 F.2d operations of disrupt Week to action, class there is large of a context government and intimidate the federal room for variation on simply too much Congress. Chief Powell viewed demon- Thus, of the class. among members item disorderly, hostile and violent stration as “a might class members be individual while for the argued crowd” and that his concern harm recover for emotional permitted as the noise safety Congress, as well showing, the uniform class proper upon Plaintiffs crowd, his action. justified cannot damages amendment for first award stemming from a portray arrests encompass this. The class all fairness enforcement au- concerted effort law injury sustained must focus on the award arresting dissen- thorities end dissent the class —the value that members of by all testified that Plaintiffs’ witnesses necessarily place on ters. one of them each assembly expression nonviolent, orderly of free rights reasonably this was case. of this The class in the circumstances petition assembly present seeking damages in- fourth amendment award for several interested hear the addresses of for humiliation of arrest an element cluded Congressmen. detention,7 may be deemed ines- jury plaintiffs’ credited characteriza- Beyond false detention. capable for tion of the reliance demonstration. Since however, this, the award to all members of intelligence and fairness of the well- sum, go. class cannot the class as a system to our jury instructed is central must those which damages class-wide justice, jury’s we resolution of respect arise from events which made necessarily major these factual issues. class treatment appropriate this action place: first decision in the jury’s The court sustains the award of arrested; should be as a whole group damages imprisonment for false arrest and booking procedures; and the as- uniform with the sums commensurate duration of demonstrators were essen- all the sumption belief, however, imprisonment. In the assumption position, in the same tially jury adequate guidance did not receive Attorney the United confirmed States respect damages, appropriate it is he pick counsel that could advising class duplica- vacate those verdicts which were individuals to use as test case any eight tive permitted or excessive or which uni- criminal prosecution. defendants in the form compensation injuries for not uni- pro- Because the district court failed to formly the class. The throughout sustained any defining with criteria jury vide will a damages remand confine determi- monetary proper scope recovery of for of compensation nation reasonable for the I infringement, first amendment think plaintiffs’ interference with first amend- part judgment this must be vacated. ment rights. wisdom, however, Judge Wright’s I in see suggestion er this issue that the might partiеs consider most appropriately wheth- be Hi ^{[*] [*] [*]} % views of Receipt dissenting my of the handled on remand the trial judge. prompts brother Tamm me to add esteemed CONCLUSION part, say a In he seems to word. facts, they only effectively true if had been trial, During jury the six weeks of trial, conflicting heard versions of the events at have a presented two established Powell, U.S.App.D.C. any mistreatment, 7. See subsequent Dellums v. humiliation or - -, 227, liberty.”) and the duration 566 F.2d 216 at decided of loss arrest, day (“. . of false this . insult defendants, by conflicting presented and in his versions ease for stronger events, conflicting of the reason- appel trial and views a conclusive one. But view of cases on ableness of conduct both defendants and dispose late courts alike must damages Judge Wright As de- plaintiffs. records before them. remand ample judicial con- out, proper at n. Powell reflects a points termination how his reac plaintiffs as to should receive full testify cern that opportunity may 5May of their impairment to the demonstration for the compensation tions his awareness of a suffering, been affected but not wind- rights and their can There prior disturbances. fall. complex as notice judicial

limited role for appro bemay events. It and controversial TAMM, dissenting. Judge, Circuit case in another priate to refer to the record in an which is opinion I cannot concur in the issues the same court. Thus before analysis upon library based rather than to the rec made it useful refer Apton8 realities of the urban forum. In grim in turn Sullivan,9 though even in ord ivory atmosphere tower of this court- for an appropriate the kind of record my uphold Brothers an unfortunate house ruling. But neither of those interlocutory upon arrived at jury verdict evidence of a bring out the situation confronted records single day’s occurrence completely isolated which is May Powell on by Chief tragic from the violent and events which The defendants did the matter at hand. preceded immediately it. To evaluate the in view of the position not take police motivation and liability conduct in 5 was unlawful prior May situation event, single the vacuum of a eyes what plaintiffs to hold demonstration to contemporaneous circumstances, closed on Grounds. May on ever legal bankruptcy. to create a is, the nature of the question what was held, whether that was demonstration The events enumerated with masochistic demonstration reaction to that delight opinion the court occurred opinions provide prior reasonable. Our 5,May represented, on They 1971. how- is not irrelevant. But background that ever, the climax of a series of demonstra- the record concern be decided on case must began April tions which 1971 and jury ing May the instructions size, accelerated volume and violence to verdict. its the dimensions of a Putsch or rebellion.1 I appendix have attached as an hereto a com- conclusion, put my I have although pilation excerpts of headlines and from the way, join Judge I do my own approach Washington period April Post for the conception in the fundamental Wright following I verdict, list the jury this was a case where a after highlight order to a few direct day following quotations than a more deliberation trial, legal as they six week’s resolved the issues indicative the conditions Wilson, U.S.App.D.C. Apton the demonstrators and also contained (1974). May 83 the F.2d schedule of demonstrations set for Week. J.A. 2460. The climax of this anti-war 28, U.S.App.D.C. Murphy, 9. 478 Sullivan 156 5, Wednesday, May set effort was 1971. 880, 938, denied, 414 94 F.2d cert. U.S. people outline called for all the who had The 162, (1973). 38 L.Ed.2d 125 May not been 3 or 4 to to arrested on move building lay siege to nonviolent de- May Day group felt 1. The coordinators of the manding Congress ratify Peoples’ prevent the authorities could not Treaty Peace and to remain there until infiltrating group their and therefore from Treaty was ratified or were arrested. J.A. all keep plans secret would efforts to their 2460, quite it 2464. The Manual made clear participants. 2463. confuse the J.A. serve to singular objective that the this effort was they published and distributed the As result 2458, government. close down federal J.A. May Day J.A. 2456-79. The Tactical Manual. 2460. procedures to be followed Manual outlined 212 observed, day-to-day appraised from made an unprecedented bring attempt government to a physical halt.

reported by representatives: media Jails, Courts Overburdened.14 Tie Up City Massive Threaten Protestors April Designed Disobedience Civil . Massive . . Keeping The Took 4,000 City Open Functioning Of Government Halt To In Troops Deployed And 4,000 Reserve, May Day Distribute . . Leaders Here. 1400 D.C. National The Bulk Guardsmen Manual.2 Of man the 5100 Force And D.C. Police Park And Police.15 vio- danger always present 23 The April # # * # greater much out. It is a break lence will upcoming danger demonstrations.3 in the looked like Yesterday's picture City ... estimated to 12,000 11,000 in 289 demonstrations handled 24 Police April swarming through demonstrators much year.4 the last Washington of downtown in the early morning blocking tangling streets and Throng Demands —Over Now, End War April with police.16 At Capitol.5 Rally 175,000 Lead Editorial Day N.J. Turnpike Shut 26 Protesters April —10 Begin Disrup- To Protest —Government tion Scheduled.6 But cannot be you much swayed by message movement when its is obliterated Dis- To Protestors Train; Guard 27 D.C. April smashing its by medium —the cars, Hill.7 rupt blocking scattering gar- streets, bage, in Witness invitation to violence, As bat- Arrested 29 Girl April tling tragedy For Bond Raised with That police. is the Arrested, Blast —200 ongoing upheaval it Capital, Protestors.8 rampage so much a message protest Seized War March —224 Arrests Halt April is not it is lost; violated so Razing Wall at H.E.W.9 After the movement is the loser in the end In- More Bared; Plot Details May Kidnap dicted The only possibility would seem to be that grand jury get a new uglier A issued federal will all as patience wears alleged con- thin indictment on yesterday the part of the weary and hard Kissinger and kidnap Henry spiracy pressed police and on the part private buildings.10 government bomb citizens.17 In To Area. Visitors Mass Move May Troops City; 50,000 To Tie Spirit Up Park — Rises.11 Of Militancy Such then was the unfortunate, but Editorial Lead say It seems almost alarming nevertheless unnecessary situation which exist- of anti-war demonstrators who army 5, May ed 1971. The demonstrations of Washington tomorrow hope paralyze cannot be succeed.12 permitted previous the two days hardly could be char- Planning To Ousted, Still Snarl May Campers peaceful acterized as petition assemblies to City Today. grievances. for redress of They were seg- Disrupting New Ob- 7,000 Arrested May City, Threatened Arrests Set structions Today, ments of an unprecedented, sophisticated Single For Protestors Record Day, and calculated effort to shut down Irk Citizens. Cap- city ital of the United States of America. More 7,000 than were arrested persons 5, 1971, May The Washington Post head- hit-and-run skirminshes widespread аnd federal Wash- troops “Capitol Rally lined Today by Set Rem- ington as anti-war yesterday protestors Post, Washington 22, 1971, April Id., 30, 1971, 2. April 1, § B at 9. A at § col. 1. 1, col. 1. Id., 1, 1971, May 1, 10. A at § 7. col. Childs, Marquis Camp: They 3. Veterans What Seek, Post, Washington 23, 1971, Id., April 2, 1971, May 1, 1, A§ 11. A at § 4. col. 23, col. 7. Id., 6, 12. B at § col. 1. Post, 1971, Washington 24, April 4. The A at § 8, Id., 3, 1971, May col. 1. 13. A at § col. 6. Id, April Id., 4, 1971, 5. A at col. 1. § A at col. § Id, April 26, 1971, 1, Id., 6. A at col. § 5. 15. col. 7. Id, 27, April 1971, 1,

7. A at § col. 1. 16. Id. Id, 29, April Id,

8. A at col. 7. § 17. at col. 1. My en- Brethren’s protecting it unreasonable for law instincts in the Was nants.”18 appellees sound, these rights civil of but apprehensive to be officers forcement I prescriptions feel their are fallacious. had the mobs which of these “remnants” rights purposes “All are derived from the of streets, cars, scat- blocking smashing been exist; society in which they the above all police, with battling tering garbage and duty to rights community.”19 rises the I viola- been mass urging had whose leaders to utilize every legal too am bound avenue govern- disruption and of the law tions of protect to guard, and enforce the strict functions; at had a wall which razed ment every person’s observance constitutional Justice doors at the H.E.W. and blocked recognize I rights, but also that courts must apparently Department; had people. I deal with cannot be blind to the Henry Kissinger and kidnap conspired to replace realization mankind learns to any buildings; might at bomb government judi fears with real dangers. fancied Our cata- another emotional erupt time into system basically expressing cial exists clysm? the the conscience of nation. which is undermines order Violence part by As the tension created in ac- liberty. anti-war indispensable to mounted, po- number of demonstrators 5, 1971 were leading up May to tivities officials, gone mindful lice of all that had government reduce federal designed to were bound to tem- punctum before reach a shambles, a mere of the violent. a tool po point they in time to con- when had —a the events nothing Certainly there a ut numquam it was a ut clude that tunc law inspire two weeks previous An —now or never. ancient scholar once with in man’s officers faith enforcement “Quis eligenuus locus vastatus an asked had reason nor goodness, inherent place ”—what I vastatus shall choose—one a they were with confronted believe destroyed or going that is one that is to be peaceful exercise display of paradigmatic officers, destroyed? Obviously these reports rights. Media amendment order, first pledged to maintain law and could that the demonstrators continually recorded exploded. not eschew action until the crisis by guided less law than arrived when feckless toler- actions time longer against It ance could no serve as a substitute and violence. is then emotions scalpel for the arrest —and the officers legal I believe the background this judgment, training, did what their their law officers liability enforcement experience obligation their re- their As Leventhal Judge evaluated. should be quired recognized them to do.20 It quoting out in from Scheuer aptly points so felt necessities of im- the time which 232, 247-48, Rhodes, 94 S.Ct. v. pelled, my opinion, justified and in the ac- (1974), quali- 1692, 40 L.Ed.2d tion which was taken. immunity government official de- fied “the existence of pends upon reasonable findings I am confronted of a with the formed at the time grounds for belief questions jury fact and the studied circumstances, 11the cou- light learned, of a rulings experi- and in of a careful and . judge faith belief . . pled good trial case. I feel the enced 1) added). at (Emphasis end result of the trial (Concurring opinion court is mistake 5, 1971, danger Id., May liability A at of such § col. 8. threat willingness deter his to execute his of- Printing Deering, Duplex Press Co. judgment fice with decisiveness and the 172, 184, 443, 488, 65 L.Ed. U.S. required by public good. J., (Brandeis, dissenting). (1920) If a 94 S.Ct. 1683. officer is to be held damages for millions accountable of dollars Scheuer, Burger 20. As Chief Justice noted carrying out of his office his duties immunity underlying rationale official willingness to execute those duties with the injustice, particularly in the the sense of the required good public decisiveness will faith, liability subjecting absence of bad destroyed. greatly utterly if not deterred required, legal obliga- an officer who discretion, position, tion of his exercise 214 opinion The for the court a delusion. en- April 23 A-l JUDGE LIFTS BAN ON VETS 7col. miscarriage by self-justify- its shrines QUICKLY, POLICE MOVE IN A-6 GENTLY symme- of adroit intellectual ing treatment 7 ARRESTING PROTESTING VETS col. Marquis Childs, A-23 VETERANS CAMP: legal try My po- sort scholasticism.21 —a SEEK col. WHAT THEY fields, well-plowed sition is in but I feel looked capital This in never more beautiful spring weather shocking legal error in this case was the perfect nor was it ever and by more confused torn troubled, appellate failure at trial and levels to take country. divisions —that wrack the Between against Vietnam the DAR Veterans ...

judicial of the unfortunate notice acts is tourists, and . masses of it War . . enough right police up to send the the wall. preceded violence which the events involved present legitimate in the case.22 Had this danger always . present . . The is time-approved legal principle been great- It violence will break out. is a much danger upcoming er in the mass demonstra- properly presented at trial level and been tions. evidence, properly established admissible Page Date Headline, Story conduct, police illegal, now held would April 23 B-l WHO, WHEN, WHAT, WHERE, WHY portrayed light in its true been (AND TO) 1col. AND HOW TO NOT . . . immunity damages from civil KEEP KEEP HEALTHY, JAIL, OUT OF KEEP FROM DRIVING INTO IT ALL as a officials established matter of B-l HOW TO KEEP OUT OF JAIL approved by majority law. The results megaphone, you cop If see a with a no opinions display complete blindness to re- saying you matter if can’t hear what he’s saying anything or if he’s at walk as ality. appellants A verdict for the all, you fast away can from there. He’s nation, not shock the warning the crowd to conscience of con- disperse, no its tel] say defense to you he didn't personally. abridgement tribute to the of constitutional Leave. rights destroy society. the fabric of April 24 A-l VETS LEAVE; MASS MARCH SLATED 7col. TODAY respectfully I dissent. 5col. WAR PROTESTS 1965-1971 APPENDIX A-8 Police have handled 289 demonstrations col. 1 in the year. last Story Date Appeared April 25 A-l END NOW, WAR THRONG DEMANDS Page in Post Headline, Story col. 1 OVER 175,000 RALLY AT CAPITOL April 21 A-l VETS CAMP ON MALL BANNED BY A-l 6 STARTING MONDAY, PROTESTERS’ col. 5 BURGER 1col. AIMS TURN TO DISRUPTION April 22 A-l VETS DISOBEY COURT ORDER, SLEEP col. 1 ON MALL QUIETLY A-15 WEARY VETS AWAIT PO- signal planned actions a new order col. 1 LICE MOVE of militancy in the antiwar movement. urged Never before have antiwar B-l leaders PROTESTORS THREATEN MASSIVE mass violations law disruption col. 1 CITY . TIE-UP. . government functions. designed Massive civil disobedience to halt functioning government April 26 A-l PROTESTERS SHUT N.J. here. . . TURNPIKE col. 5 10 DAY Protesters feel must now PROTEST resort TO BEGIN, extra-legal GOVERNMENT tactics. . . DISRUPTION SCHEDULED Leaders Protest Mayday distribute Manual. . . Lobbying, leaders envision massive traffic A-16 Sit-ins to Mark Protests jams, expect 50,000 col. 1 good 21. The made, reliance on Nicholson properly court’s faith could it was opinion unique appellate in that federal improper judicially for such a conclusion to be usually upward guidance courts look rather noticed. Id. unpublished opinion than to an of an inferior However, Washington in Mobilization Com cоurt. this not an Is obvious means of at- Cullinane, U.S.App.D.C. mittee v. at-- tempting philosophically to move where it is -, 114-115, 566 F.2d (D.C. at No. 75-2010 impossible legally? to arrive April 1977), Cir. this court noted with approval judi that the district court had taken Although the Chief Justice concluded opinions cial notice the facts recited our inappropriate Scheuer that was for the court concerning Day demonstrations, judicial there to take notice “mob rule” Wilson, Apton U.S.App.D.C. 22, i. e. existence, procedure conditions such (1974); Murphy, F.2d 83 and Sullivan v. 249-50, no means foreclosed. U.S.App.D.C. denied, 478 F.2d cert. Court ruled since there (1973). 94 S.Ct. 38 L.Ed.2d 125 petitioners opportunity was no afforded to con- The district court should have done likewise assumed, test the since facts there was no this case. finding evidence before court from

215 Page Story Headline, Date A FOR RECORD SET 3 ARRESTS col. 4May Page Headline, Story Date DAY SINGLE TRAIN; PROTESTS April 27 GUARD TO A-l D.C. IRK CITIZENS 5 PROTESTERS col. col. 1 DISRUPT HILL OVERBURDENED JAILS, 4 A-l COURTS May FREAK OUT, CAMP A-ll DEMONSTRATORS co1*5 arrested IN PARK were persons 1 OUT THE 7,000 col. More than with skirmishes hit-and-run widespread RE- ASK NATION TO April 28 A-l CHURCHMEN Washington troops police and federal yesterday as 3 PENT col. WAR made an protesters anti-war govern- bring the to attempt unprecedented AS IN April 29 A-l GIRL ARRESTED WITNESS halt. physical 7 BLAST— ment to a col. CAPITOL May 2 April 30 A-l ARRESTS HALT WAR MARCH May col. 6 col. col. 2 col. col.7 MASS TO TIE-UP col. 1 col. 1 col. A-l A-l A-l A-l KIDNAP PLOT DETAILS A-5 2 200 7 MORE INDICTED PRESIDENT SAYS PROTESTS TROOPS 7,300 370 SEIZED BLOCKING Judges dictment acy government TO JUSTICE IN PARK A NEXT WEEK INTIMIDATE PROTESTORS AT HEW to SEIZED ARRESTED, federal POLICE COUNTER DISRUPTION kidnap Set yesterday MOVE Night Duty buildings. grand jury AFTER Henry GUARDSMEN, IN TO AREA HIM BOND RAISED FOR in the CITY; 60,000 Kissinger RAZING issued DOORS alleged Set BARED; Bond READIED VISITORS a new in- WALL AT conspir- WON’T bomb oo1-1 col. A-1S A-16 streets a work at 5:00 asking City” was read man D.C. tol deployed and National like this: COMMUNICATIONS, LUCK THE Lead Editorial Just before Keeping Yesterday’s picture of THE MESSAGE FORCES ONE police. an estimated strators downtown with morning MOVEMENT, THE Guardsmen, police. message police Washington blocking a.m. swarming 4,000 ^[*] city open ^[*] Washington over the force and UP ON 11,000 dissidents from President ^{[*] [*]} streets reserve, 1,400 D.C. be through took to bulk police ^{[*] [*]} PROTESTORS MEDIUM Park kept 12,000 in the took to the 4,000 troops of the KEEP city looked radio net- and Capi- “an much of tangling demon- Nixon Open 5,100 AND early troops Several thousand federal were swayed by be you But cannot much readied possible trouble the next message is its obliterated movement when by days city’s three third consecutive as smashing cars, its medium—the began yester- week of antiwar activities scattering gar- blocking streets, . day. . . battling bage, violence, the invitation tragedy of on- police. with That is the Pentagon May 2 A-l air army, announced that going it Capital, in the is not so upheaval corps ready. force and marine troops rampage as a and the mes- protest much sage just lost; violated so that Washington Portrait A-l War Protest end. in the the movement is loser col. 4 SPIRIT OF MILITANCY RISES A-16 TRAFFIC NUMBERS TO CALL FOR seem be that only possibility would col. 5 DATA uglier, get patience it will wears thin all as Lead B-6 Editorial hardpressed weary part 0oL1 part private citizens. police and on the 8; MONDAY, MAY exceptions With some was the forebearance SOME OBLIGATIONS us, the word the strators, all and not for which of of yesterday, body all the main demon- least of unnecessary say It almost that who seems owe some the skill and dis- debt to army the hope anti-war demonstrators cipline police security Washington, and the forces. paralyze tomorrow . . permitted cannot this, succeed. . For May 5 A-12,700 MORE JAILED IN PROTESTS presumably we will police have 8col. troops hand, past men who in the SEIZED AT CROWN JUSTICE high degree of sense and demonstrated restraint in . . coping BY CAPITOL RALLY SET TODAY REM- disorderly protest with NANTS pressure . There been enormous has past police the week, and officialdom over the A-l MASS BY ARRESTS DIRECTED JUS- hopeful but we remain and confidеnt col. 7 TICE DEPARTMENT they planned that turbance will deal dis- but dis- A-l firm, DEJECTEDLY, and disturbers in a SOME LEAVE OTHERS orderly way. col. DIG ciplined and IN A-16 CAPITAL WITNESSES SECOND DAY OF OUSTED, STILL PLANNING CAMPERS May 8 A-l col. 8 CIVIL DISOBEDIENCE... TO SNARL CITY TODAY 6col. TO WE INTEND BE “TOMORROW BACK” PARKS OF DAWN SWEEP CLEANS 45,000 blame, A-24 and his are not to Chief Wilson men Depart- col. With ment the Police exceptions, some SHOT ON CLOSING A-l JUSTICE CALLED as well as other area forces and CAMP col. 7 all military performed units commend- job ably had to do. There DISRUPTING CITY 7,000 ARRESTED May 4 A-l in which individu- lapses, were al serious some THREATEN- NEW OBSTRUCTIONS 7col. readily too policemen used their clubs ED TODAY Page Date Story Headline, government If decisions come to be made Page Story Headline, Date might we way, up wake to discover that apartheid has become officialAmerican poli- bystanders, particularly innocent A-24 in which cy. long they happened hair, to have if arrested col. 1 without cause. But one could not genocide. Or they sympathy policemen sped look at across town for which Wilson was running buses of May 10 C-l D.C. POLICEMEN GET SOME having SLEEP AS without some col. 5 DAY IS LARGELY PROTESTLESS the strain and near exhaustion under they have worked. The task Chief straight handling After nineteen days of keep city's traffic —to demonstrations, policemen here slept late at almost cost —was a formida- morning yesterday . . . gotten ble one. And he has no public back- ing assigned man from the who him task, President, simply who left town. May A-l 1,200 PROTESTERS ARRESTED AT CAP- col. 5 ITOL singing, clapping 1,161 Police arrested dancing yesterday antiwar demonstrators closing protesters after the Capitol forced the program day the third of their large scale disobedience. who Protesters crowded the east steps of Representatives yesterday House of af- winding ternoon did not appear to be down Honorable Ronald V. DELLUMS et al. peace their efforts. Haynes A-l Johnson, PROTESTERS POINT UP col. 5 CONFLICT OF RIGHTS POWELL, Chief, James M. United States long grave “It any question has been whether government, strong Capitol Police, et al. not too for the liber- strong enough citizens, ties of its can be great emergencies.” maintain existence in its Appeal Jerry WILSON, Chief, V. Abraham Lincoln Metropolitan Department, Police That old American dilemma has never spring clearly been more week in focus than this and District of Columbia. Washington. The demonstrators government have made their protests, No. 75-1975. survived, everywhere but citizens has disturbing wrestling questions A-l in the acts civil dis- latest aftermath of massive obedience. United States Court of Appeals,

District of Columbia Circuit. question probably The basic most of American to assemble dress of involves Argued Jan. 1977. delicate, complex, and central theme life-rights; right the citizen's Aug. Decided peacefully petition for re- grievances, right and the to move Rehearing rights Denied Nov. freely majority impairment. without aof right a minority. The to due —and right process law, and the to be free from subject bail excessive to cruel and unusual punishment. ... All of these came in direct conflict this week in the streets and prison Washington. compounds and courtrooms of Washington They have left city. a troubled A-14 Capitol Police Chief James M. Powell an- col. 1 nounced over a bullhorn that the demon- strators would be arrested in ten minutes they remained steps. if His announce- ment demonstrators. was drowned out the noise of the mass arrests on the Steps came approval with the Speaker of House Carl Albert. Albert told reporters that he had been informed Powell the demon-

strators should be removed from the steps, and he ‍​​​‌​‌‌‌‌​​​​‌‌​​​‌​​‌​‌‌​‌​‌‌​​‌‌​‌‌‌​​​​‌​‌​‌‌‍said he answered “OK”. A-19 William Raspberry,

7col. MIXED EMOTIONS ABOUT MAY DAY massive demonstrated that disruptions could were changes. am afraid, too, what result might major result policy if it ugly

Case Details

Case Name: Honorable Ronald v. Dellums v. James M. Powell, Chief, United States Capitol Police, Jerry v. Wilson, Chief, Metropolitan Police Department

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 14, 1977

Citation: 566 F.2d 167

Docket Number: 75-1974

Court Abbreviation: D.C. Cir.