Saffron v. Wilson (481 F. Supp. 228, 1979)

MEMORANDUM

OBERDORFER, District Judge.

INTRODUCTION

This case arose from the removal from sidewalks adjacent to the White House and the subsequent arrest in Lafayette Park on Inaugural Day 1973 of Edward Saffron, who was there as a pedestrian peacefully carrying a sign bearing a political-religious message similar to one he had carried in front of the White House on an almost daily basis over the previous four years. Plaintiff seeks damages against the District of Columbia, a number of officers and officials of the United States Park Service and the District of Columbia Metropolitan Police, and agents and officers of the United States Secret Service. He also prays for injunctive and declaratory relief against the official defendants — heads of the Park Police, Metropolitan Police and Secret Service because they allegedly violated his constitutional rights under the First, Fourth and Fifth Amendments. Plaintiff claims defendants violated those rights by interrupting his sign-carrying on Inaugural Day, by arresting him and by failing to establish a constitutionally-valid plan to regulate expressive conduct on Inaugural Day 1973. Plaintiff claims defendants threaten to violate those rights on future Inaugural Days because they have failed to adopt any such plan for future Inaugural Days.

All defendants have moved to dismiss and for summary judgment on all issues; plaintiff filed dispositive motions against only a few defendants on several issues. To facilitate the progress of this litigation, the Court entered a number of orders resolving most of the pending dispositive motions pri- or to the issuance of this memorandum. In its orders of January 5 and 9, 1979, the Court granted summary judgment (1) for the eight individual Secret Service officers Rundle, Burke, Town, Jones, Shanahan, Evans, McLeod and Lau, based upon their statute of limitations defense; (2) for individual Park Police defendants Wright, Dickenson, Beye, Hill, Lindsey, Herbert, Brady, Niedringhaus and Burdick (para. 2) and Wells (para. 4), based upon immunity; and (3) for the District of Columbia defendants Wilson, Mann and McKnight, also based upon immunity. As to one party, the Court vacated its earlier order and (4) granted the motion to dismiss on behalf of decedent Arthur Lamb, named as a Park Police defendant. The Court reserved the issue of the liability of the District of Columbia, having requested further briefing in its order of January 5, 1979.

After further consideration of the statements of material facts and the replies thereto, and other statements and the arguments and admissions of counsel on the record in the context of pre-trial conference on January 9, 1979, conducted pursuant to F.R.Civ.P. 16, the Court concluded that there were no material issues of fact to be tried and requested the parties to file statements of proposed facts to which they agreed and facts to which they did not agree; order of February 2, 1979. After consideration of the briefs on that issue, as well as plaintiff’s motion for reconsideration of the dismissal as to Mann, McKnight and Wilson, and the able oral arguments of counsel for the several parties, the Court concluded that no material issues of fact existed which barred entry of summary judgment for the District of Columbia on the issue of liability in damages. In its order of April 27, 1979, the Court summarized its actions subsequent to its January orders and resolved remaining outstanding motions. It (5) extended its findings of immunity, granting summary judgment for defendant Rowley, and (6) granted summary judgment for the District of Columbia on the issue of its liability in damages. Finally the Court (7) entered summary judgment for plaintiff on the issue of his entitlement to equitable or declaratory relief against the District of Columbia and against official defendants Knight, Wells and Jefferson in their capacities as heads of the Secret Service, the Park Police and the Metropolitan Police respectively.

This memorandum builds upon the joint findings submitted by the parties and sets forth the conclusions of law which underlay the Court’s earlier rulings. Leaving for separate treatment matters relating solely to the defenses of immunity and the statute of limitations, Part I of the memorandum embodies general findings of fact, setting the background for the memorandum by identifying the parties (Part A), explaining the so-called Quaker Action notice system (Part B), and the Presidential Inaugural Ceremonies Act and regulations (Part C), setting forth plaintiff’s compliance with the Quaker Action procedures (Part D), defendants’ planning for the 1973 Inaugural (Part E), the facts relating to plaintiff’s removal and arrest (Part F), and planning with respect to the 1977 and future Inaugurals (Part G).

Part II sets out the conclusions of law relating to jurisdiction and mootness (Part A) and, in the remaining sections, conclusions relating to the official defendants’ liability and the remedy to which plaintiff is entitled. Because of the differing roles of the parties, liability is best analyzed by recognizing four somewhat overlapping bases for liability: (i) plaintiff’s removal from the White House sidewalk; (ii) the events in Lafayette Park, including plaintiff’s arrest; (iii) failure to promulgate a plan for the regulation of expressive conduct on Inaugural Day prior to Inaugural Day 1973 and (iv) failure subsequent to that day. Part B analyzes defendants’ liability for plaintiff’s removal from the White House sidewalk and for the failure to promulgate a plan at the time and subsequently; Part C deals with liability for plaintiff’s arrest in Lafayette Park; Part D deals with the question of the District of Columbia’s liability in damages for plaintiff's removal and arrest and for its role in the failure to promulgate a plan. Part E considers the propriety of the injunctive relief sought; the specific relief to which the Court concludes plaintiff is entitled is set out in Part F.

Part III embodies findings of fact and conclusions of law as to the immunity defense of the Park Police and District of Columbia individual defendants. Finally, Part IV sets forth findings and conclusions as to the statute of limitations defense of the individual Secret Service defendants. The Court reserves for separate treatment issues relating to the course and conduct of this litigation and the motions for sanctions, having concluded that such issues are not material to the Court’s judgment as to defendants’ substantive liability and the remedy to which plaintiff is entitled.

I. FINDINGS OF FACTS WITH RESPECT TO DEFENDANTS’ VIOLATION OF PLAINTIFF’S CONSTITUTIONAL RIGHTS

A. The Parties

1. Plaintiff Edward Saffron is a resident of the District of Columbia (Saffron dep. at 3).

2. The District of Columbia is a municipal corporation and is the constituted government of the District of Columbia.

3. Defendant Jerry L. Wells is the Chief of the United States Park Police; he is sued in both individual and official capacities.

4. Defendant H. Stuart Knight has been Director of the United States Secret Service since November 1973 and is sued in his official capacity only.

5. Defendant Burtell Jefferson is the Chief of the Metropolitan Police Department and is sued in his official capacity only.

6. On Inaugural Day 1973, • defendant Jerry Wilson was Chief of the Metropolitan Police Department; he is sued individually.

7. On Inaugural Day 1973, defendant Russel E. Dickenson was Director of the National Parks Program.

8. On Inaugural Day 1973, defendant Grant Wright was Chief of the United States Park Police.

9. On Inaugural Day 1973, defendant Alfred Beye was Deputy Chief of the Park Service.

10. Defendant Arthur Lamb, now deceased, was, on Inaugural Day 1973, Chief and Acting Chief of the Division of Special Events of the National Park Service.

11. On Inaugural Day 1973, defendant James J. Rowley was Director of the United States Secret Service; he is sued individually-

12. Defendants Hill, Lindsey, Herbert, Brady, Niedringhaus and Burdick were on Inaugural Day 1973 officers of the Park Police. Defendants Hill, Lindsey and Herbert had supervisory authority over the other officers.

13. Defendant Stephen Mann was a Metropolitan Police Officer on Inaugural Day 1973; defendant Jerry McKnight was Officer Mann’s immediate supervisor and was present when Mann arrested plaintiff. (Mann dep. at 11-12; McKnight dep. at 12; Ans. of def. Wilson to Interrogs., ¶ 1, June 16, 1976; Ans. of def. District of Columbia to Interrogs., ¶ 1, June 14, 1976).

14. The Metropolitan Police Department is responsible for enforcing the laws and ordinances of the District of Columbia in the city and has secondary responsibility in the areas of national parkland.

15. The United States Park Police is a sub-agency of the Department of the Interi- or and is responsible for enforcing Department of Interior regulations governing demonstrations on national parkland, including the White House sidewalk and Lafayette Park. (36 C.F.R. §§ 50.1, 50.19 (1978)).

16. As pertinent to this case, the United States Secret Service has no particular geographical area of jurisdiction. The Service has responsibility for the protection of the President and other designated domestic and foreign officials. (18 U.S.C. § 3056 (1976)).

B. The Quaker Action Notice System

17. In 1966, the Secretary of the Interi- or promulgated regulations requiring “an official permit” for “public gatherings”, including parades, ceremonies, and demonstrations on certain parklands within the jurisdiction of National Capital Parks, National Park Service (“National Capital Parks”). The parklands subject to this permit requirement included the sidewalk on the south side of Pennsylvania Avenue, N.W., between East and West Executive Avenues (“the White House sidewalk”) and Lafayette Park, a park on Pennsylvania Avenue across from the White House, and contiguous sidewalks (“Lafayette Park”). The head of National Capital Parks was-delegated the authority and responsibility to act on applications for permits to demonstrate. Demonstrating without a permit subjected demonstrators to arrest by the Park Police, and imprisonment; 31 Fed. Reg. 6263 (April 23, 1966), amended, 32 Fed.Reg. 13582 (September 28, 1967), codified at 36 C.F.R. §§ 50.5, 50.19 (1968).

18. Beginning in August 1967, the regulations were enforced by National Capital Parks, and demonstrators lacking an official permit were arrested by the Park Police; A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 179, 421 F.2d 1111, 1114 (D.C.Cir.1969) (“Quaker Action I”).

19. (a) In March 1969, a lawsuit was filed in the United States District Court for the District of Columbia challenging the constitutionality of the regulations and asserting that the permit system had been administered in an arbitrary and capricious way to harass would-be demonstrators and to deny permit applications without adequate justification. The lawsuit has become known as the Quaker Action ease after the name of one of the plaintiffs. The defendants in Quaker Action included the Secretary of the Interior, the Director of the National Park Service, and the head of National Capital Parks; Quaker Action I, supra, 137 U.S.App.D.C. 179-180, 421 F.2d at 1114-15.

(b) In April 1969, the District Court granted the plaintiffs’ request in Quaker Action for a preliminary injunction against enforcement of the permit regulations pending a determination of the merits of the case. Under this injunction, the head of National Capital Parks was prevented from requiring an official permit for demonstrations; Quaker Action I, supra, 137 U.S.App. D.C. at 178, 184, 421 F.2d at 1113, 1119; A Quaker Action Group v. Morton, 516 F.2d 717, 721 (D.C.Cir.1975) (“Quaker Action IV”).

(c) On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the grant of the preliminary injunction against the enforcement of the permit system. The Court of Appeals modified the injunction to require that anyone wishing to demonstrate in the area of the White House must — instead of applying for a permit to demonstrate — provide notice of the planned demonstration to the head of National Capital Parks at least fifteen days before the event; id.

20. Under this procedure imposed by the Court, if a federal agency wished to prevent a planned demonstration for which a fifteen-day notice has been filed, the agency was required to apply to the District Court for a court order to stop the demonstration. National Capital Parks did not have the authority under the injunction to deny, on its own, permission to demonstrate pursuant to a fifteen-day notice. If no court order were obtained, persons demonstrating pursuant to a fifteen-day notice were treated, in effect, as demonstrators with a federally-authorized permit to demonstrate; Quaker Action I, supra, 137 U.S.App.D.C. at 184, 421 F.2d at 1119; A Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 2 n.1, 429 F.2d 185, 186 n.1 (D.C.Cir.1970) (“Quaker Action II”); A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 355-356, 460 F.2d 854, 863-4 (D.C.Cir.1971) (“Quaker Action III”)-, Wells dep. at 2, 28.

21. The fifteen-day notice system established by the Court of Appeals was in effect for a time in 1969 and continuously from April 1970 to September 1973. A form of fifteen-day notice was approved by the Court of Appeals in October 1970 and was in use continuously from that date until September 1973; A Quaker Action Group v. Morton, 362 F.Supp. 1161,1167 (D.D.C.1973) (remand from Quaker Action III); 35 Fed. Reg. 17552 (November 14, 1970).

22. The fifteen-day notice form prescribed by the Court of Appeals in the Quaker Action case was addressed to the General Superintendent (later called “Director”) of National Capital Parks of the National Park Service. The fifteen-day notices were filed at the office of the Division of Special Events, a department of National Capital Parks; 35 Fed.Reg. 17552 (November 14, 1970); Lamb dep. at 7, 10, 44 — 50.

23. Under the system to handle fifteen-day notices it was not necessary for a person or group to receive any confirmation from National Capital Parks regarding a fifteen-day notice before demonstrating pursuant to the notice. People who filed fifteen-day notices and received no communication were entitled to rely on the notice as giving them authority to demonstrate in conformity with the notice; Dickenson dep. at 57.

C. The Presidential Inaugural Ceremonies Act and Regulations Thereunder

24. (a) The Presidential Inaugural Ceremonies Act, as amended, confers upon the Secretary of the Interior the authority to grant national parkland for the use of the Inaugural Committee, if requested, and confers upon the District of Columbia the authority to adopt ordinances and regulations applicable to each Inauguration; Presidential Inaugural Ceremonies Act, P.L. 84-986, 70 Stat. 1049 (1956), amended by Act of Jan. 30, 1968, P.L. 90-251, 82 Stat. 4 (1968), D.C.Code § 1-1201 et seq.

(b) In conjunction with the authority conferred by the Presidential Inaugural Ceremonies Act, the Director of National Capital Region, National Park Service notified the Chairman of the Inaugural Committee that the Lafayette Park area was committed to the exclusive use of the Inaugural Committee from January 15-25,1973; Lamb dep. at 77-78, Lamb dep. exh. 15; Dickenson dep. at 53.

(c) Pursuant to the authority of the Presidential Inaugural Ceremonies Act, the District of Columbia City Council adopted Regulation No. 72-33 authorizing the Chief of Police to close streets and areas for the 1973 Inaugural; Regulation 72-33, Park Service Defendants’ Motion for Summary Judgment.

(d) Pursuant to Regulation No. 72-33, the Metropolitan Police Department adopted Special Order No. 73-1, which, inter alia, established police lines around the Lafayette Park area and prohibited entry except to persons having valid press passes and credentials from the Inaugural Committee; Special Event Order No. 73-1 §§ 4, 5; Park Service Defendants’ Motion for Summary Judgment.

(e) The United States Park Police, pursuant to Special Event Order No. 2 closed the Lafayette Park and White House areas to all persons except those with a ticket or press pass for the area; Special Event Order No. 2,1973 series, Park Service Defendants’ Motion for Summary Judgment.

25. The Presidential Inaugural Ceremonies Act, District of Columbia City Council Regulation 72-33, Metropolitan Police Department Special Order 73-1 and Park Police Special Event Order No. 2 did not address demonstrators or demonstrations or the effect of the Quaker Action order. There was no plan or procedure for the application or dissemination of any Inaugural or other regulations or rules which were potentially applicable to peaceful demonstrators or demonstrations in the vicinity of the White House and the Lafayette Park area on Inauguration Day, 1973, either within any of the federal agencies or the Metropolitan Police or jointly.

26. The arresting officer, and certain supervisors and individual officers of the Park Police and the Secret Service who were assigned to the reviewing stand area on January 20, 1973, were unaware of the existence and terms of any Inaugural or other regulations or rules which were potentially applicable to peaceful demonstrators or demonstrations in the vicinity of the White House and the Lafayette Park area and of their duties or those of their agency or of other coordinate agencies to comply with any such Inaugural or other regulations or rules.

27. No officer or official undertook, on behalf of the Inaugural Committee or in light of the joint planning and coordination of security functions in the reviewing stand area, to determine whether or not to approach the Quaker Action Court for a countervailing order as to any demonstration noticed for that area on Inaugural Day, 1973.

28. Comparing the Presidential Inauguration Ceremonies Act and the provisions of Quaker Action at an earlier point in this litigation, Judge William B. Jones found as follows:

First, the Inaugural regulations were the product of specific, independent legislative authority. Second, while Quaker Action is concerned with the ongoing, day to day regulation of demonstrative activity in the White House area, the Inaugural legislation limited the authority of the regulations allegedly relied upon by the officers to a 10-day period occurring but once every four years. Likewise, Quaker Action and the regulations at issue there deal with general conditions normally existing in the White House area; the Inaugural regulations were concerned with conditions so extraordinary that they were the subject of special legislation. Finally, while Quaker Action demonstrates a concern for the everyday protection of the life and safety of the President, the Inaugural legislation and regulations promulgated pursuant thereto demonstrated a broader concern for the “preservation of public order and protection of life, health and property” (D.C. Code § l-1202(a)) during the exceptional Inaugural period.

Saffron v. Wilson, 70 F.R.D. 51, 61 (D.D.C. 1975).

29. None of the opinions in Quaker Action makes mention of Inaugural Day or the special circumstances of that day.

D. Plaintiff’s Compliance with Quaker Action Procedures

30. Plaintiff Edward Saffron has regularly picketed alone in the vicinity of the White House since 1969. It has been his customary practice to wear or carry signs relating to a personal grievance he has against the United States Government; Saffron Affidavit (filed May 24, 1974), ¶ 2-3.

31. While the fifteen-day notice system was in effect, plaintiff regularly filed fifteen-day notices for his picketing. At the request of National Capital Parks beginning in June 1971, plaintiff filed his fifteen-day notices once each month to cover a thirty-day period. Thus, for example, a notice filed on the first day of the month covered the thirty-day period from the sixteenth day of that month through the fifteenth day of the following month; Dickenson dep. at 24-25 and exh. 3; Lamb Affidavit (April 26, 1974), ¶ 3.

32. On November 30, 1972, plaintiff filed with the Division of Special Events a fifteen-day notice that, according to the practice established for plaintiff’s notices, covered the period December 15, 1972, through January 15, 1973; Lamb dep. exh. 5.

33. The Division of Special Events distributed copies of plaintiff’s notice to, among others, the Park Police, the Metropolitan Police, the Secret Service and the F.B.I.; id.

34. On January 2, 1973, plaintiff filed with the Division of Special Events a fifteen-day notice that, according to the practice established for plaintiff’s notices, covered the period January 16, 1973, through February 15, 1973; Lamb dep. exh. 10; Lamb Affidavit (April 26, 1974), ¶ 3.

35. No motion was filed in Quaker Action to obtain a court order, and no such order was entered, to prevent plaintiff’s demonstration pursuant to his fifteen-day notice of November 30, 1972.

36. No motion was filed in Quaker Action to obtain a court order, and no such order was entered, to prevent plaintiff’s demonstration pursuant to his fifteen-day notice of January 2, 1973, for the period which included Inaugural Day 1973.

E. Planning for the 1973 Inaugural

37. The Inaugural parade in 1973 was an event organized, financed and staged by a private organization called the 1973 Inaugural Committee; Lamb dep. at 75-76.

38. The 1973 Inaugural Committee requested Lafayette Park for its exclusive use for the Inaugural parade; Lamb dep. at 77-78.

39. (a) The person in charge of supervising, planning and preparation for the Secret Service for the 1973 Inaugural, given the title of Inaugural Coordinator, was Robert R. Burke, who is at present Deputy Assistant Director of the Secret Service and who in 1973 was an inspector in the Internal Investigation Unit of the Secret Service; Burke dep. at 1-2.

(b) Park Service planning for Inaugurals begins in the December before with the creation of a pre-inaugural Committee of the Park Service, which reviews material from past Inaugurals. Specific planning can begin shortly after the election and appointment of an Inaugural Committee by the President-elect; see Lamb dep.. at 69-78.

40. The Secret Service necessarily plays the lead role, in conjunction with the Park Police and the Metropolitan Police, in coordinating plans and procedures for dealing with demonstrators and demonstrations during Inaugurals in the vicinity of the President. Coordination of functions and activities is required for law enforcement activities in the Lafayette Park and White House areas during such events; Burke dep., passim,

41. Any occurrence or person that could potentially cause a disturbance, diversion, disruption, or any other circumstance that would pose or increase security problems related to the Secret Service’s protective functions are of particular concern to the Secret Service. Because demonstrators are particularly noticeable and hence create greater potential for causing a disturbance, diversion, disruption or any other circumstance that would pose or increase security problems related to the Secret Service’s protective functions, their actions in the vicinity of a Secret Service protective function are particularly scrutinized by Secret Service agents; Burke dep. at 51-52, 54, 63-64.

42. The Inaugural Secret Service advance team for the 1973 Inaugural, in charge of making and coordinating arrangements in the Lafayette Park and White House areas, was headed by Secret Service Inspector William R. Holmes and his deputies John M. Wiley and Clint Howard; Burke dep. at 3; Holmes dep. at 10-13; Wiley dep. at 6-7; Howard dep. at 6-9.

43. Secret Service Agents Holmes, Wiley and Howard met regularly and on a largely informal basis with supervisory officials and other officers of the Park Police and the Metropolitan Police prior to January 20, 1973, in order to review, plan and coordinate security arrangements in the vicinity of the reviewing area in front of the White House, and including all of Lafayette Park, and to review anticipated problems for the security and other management of these areas, including anticipated demonstrators and demonstrations; Holmes dep. at 14; Wiley dep. at 19-22; Howard dep. at 20-25.

44. Written memoranda were apparently not prepared in connection with these meetings, either for instructional purposes or to assign and coordinate functions or to record the substance of these meetings; Holmes dep. at 14 — 20.

45. Two or three days before the 1973 Inaugural, Agents Holmes, Wiley, Howard and Burke met with other Secret Service officers to discuss the nature of the briefing which would be held for the instruction of Secret Service officers as to their responsibilities on January 20,1973; Holmes dep. at 20-22.

46. (a) A briefing for all Secret Service officers who would be in the Lafayette Park area on January 20, 1973 was held in the New Executive Office Building, ending at approximately 9:30 a. m. on January 20, 1973. At this briefing there was no instruction given or discussion held relating to demonstrators or demonstrations, to the impact of the Quaker Action order and non-enjoined Quaker Action notices in light of the Inaugural, or to constitutional rights, including the First Amendment right of demonstrators; Holmes dep. at 23-24; Wiley dep. at 13.

(b) A briefing was held for all Park Police officers who would be assigned to the Lafayette Park area. All officers were informed that only persons with tickets or press passes could be admitted to the area. At this briefing there was no instruction given or discussion held relating to demonstrators or demonstrations, to the impact of the Quaker Action order and non-enjoined Quaker Action notices in light of the Inaugural, or to constitutional rights, including the First Amendment right of demonstrators; Hill dep. at 7,13-14,15; Lindsey dep. at 15-17.

(c) A meeting of the Metropolitan Police officers for a description and distribution of duty assignments in the Lafayette Park area on January 20, 1973, was held on the morning of that day. During this meeting, officers were told that entrance to that area would be permitted at designated points to ticket and press pass holders. At this meeting there was no instruction given or discussion held relating to demonstrators or demonstrations, to the impact of the Quaker Action order and non-enjoined Quaker Action notices in light of the Inaugural, or to constitutional rights, including the First Amendment rights of demonstrators.

47. During the time security operations continued in effect in the reviewing stand area on January 20, 1973, officers of the Metropolitan Police, the Park Police and the Secret Service could at all times communicate with their respective agencies through radio contacts and with members of other agencies by radio through a central command post.

48. The Secret Service, Park Police and Metropolitan Police, regularly consulted with each other and made joint decisions concerning, respectively, access to the re-, viewing stand area, and the authority of persons to be located in areas contiguous to the review stand area; Holmes dep. at 31-38; Wiley dep. at 18 — 22.

49. There was no written plan or procedure for the application of the Quaker Action order or any other plan for regulation of expressive conduct on Inauguration Day, 1973, either within any of the federal agencies or the Metropolitan Police or jointly.

F. Plaintiff’s Removal and Arrest

50. About 9:20 a. m,, on January 20, 1973, plaintiff arrived at the south side of Pennsylvania Avenue in front of the Executive Office Building between 17th Street and West Executive Avenue, N. W. Plaintiff put on his sandwich-board sign and began to picket slowly and peacefully by himself; Saffron dep. at 32-33.

51. Shortly thereafter, plaintiff moved his picketing east to the intersection of West Executive Avenue and the south side of Pennsylvania Avenue. Stands or bleachers blocked West Executive Avenue; on either side of the intersection were the bleachers in front of the Executive Office Building (to the west) and the stands built into the street in front of the White House (to the east); Saffron dep. at 32-33; Exhibit G2, Motion of Defendants Wright, et a 1. to Dismiss (filed April 26, 1974).

52. After plaintiff arrived at West Executive Avenue on the south side of Pennsylvania Avenue, Park Police officers James C. Lindsey and William P. Brady arrived at the scene. Brady saw and read plaintiff’s fifteen-day notice, and the notice was shown to Lindsey. Brady advised plaintiff that he would have to leave the area, and plaintiff responded that he had a “permit” to demonstrate. Without consulting anyone, Lindsey decided that plaintiff had to be removed from the area, and Brady escorted plaintiff across Pennsylvania Avenue to the southwest corner of Lafayette Park. At the time of his removal, plaintiff was not placed under arrest by the Park Police for violating any law; Burdick dep. at 15-16, 17; Brady dep. at 15-18; Lindsey dep. at 23-24, 26.

(a) Lindsey understood that his assignment on January 20, 1973, included assisting the Secret Service in screening persons near the White House. Lindsey was in plainclothes; Lindsey dep. at 9, 12, 21; Lindsey dep. exh. 1.

(b) Lindsey was familiar with the fifteen-day notice system, had seen plaintiff demonstrating in the area on prior occasions, and had on occasion been involved in checking plaintiff’s fifteen-day notice; Lindsey dep. at 16, 29-30.

(c) Brady understood that his assignment on January 20, 1973, included assisting the Secret Service in the vicinity of West Executive Avenue on the south side of Pennsylvania Avenue. Brady was in plainclothes; Brady dep. at 8, 9; Lindsey dep. exh. 1.

(d) Brady was familiar with the fifteen-day notice system, had seen plaintiff demonstrating in the area on prior occasions, and had on occasion been involved in checking plaintiff’s fifteen-day notice; Brady dep. at 16-17, 21-23, 77.

53. After plaintiff had for a time continued picketing peacefully with his sandwich-board sign at the southwest corner of Lafayette Park, a discussion ensued at that location regarding plaintiff’s presence and his fifteen-day notice. According to Park Police officers the discussion included still-unidentified agents of the Secret Service, plaintiff, and officers of the Park Police, including Parker T. Hill, Paul J. Herbert, Brady, and Donald L. Niedringhaus. Plaintiff asserted that he had a permit to demonstrate in the area. No Secret Service agent who has been contacted, interviewed or deposed in conjunction with this litigation has stated that he recalls such a discussion although it is disputed that all who might recall such a discussion have been so contacted, interviewed or deposed. No Park Police officer could identify a particular Secret Service agent as having participated in the discussions; Burdick dep. at 18; Brady dep. at 29-37; Herbert dep. at 16-19, 20, 43; Hill dep. at 21, 23, 24 — 25; Niedringhaus dep. at 19-22, 26-27, 37.

54. Park Police officers reported that during this discussion, one of the Secret Service agents had expressed concern about plaintiff’s presence as a demonstrator. The agent told Hill that plaintiff was making the Secret Service agents nervous and that they wanted plaintiff removed from the area. Hill, without consulting anyone, then told the Secret Service agent or agents “We’ll get him out of here,” and directed two or more Park Police officers to take plaintiff north to H Street. No Secret Service agent who has been contacted, interviewed or deposed in conjunction with this litigation has stated that he recalls such a discussion although it is disputed that all who might recall such a discussion have been so contacted, interviewed or deposed. No Park Police officer could identify a particular Secret Service agent as having participated in the discussions; Findings of Fact 78, infra.

(a) Hill understood that his assignment on January 20, 1973, included providing support to the Secret Service in Lafayette Park; Hill dep. at-5-7.

(b) Hill was familiar with the fifteen-day notice system and had seen plaintiff demonstrating in the area of the White House and Lafayette Park on prior occasions; Hill dep. at 17-19, 27-28.

55. At about 11:00 a. m., Niedringhaus, Herbert, and Brady escorted plaintiff from the southwest corner of Lafayette Park north to the intersection of Jackson Place and H. Street. Niedringhaus and Brady or Herbert grabbed plaintiff by the arms. At the time of this removal, plaintiff was not placed under formal arrest by the Park Police for violating any law; Brady dep. at 37-38, 76; Niedringhaus dep. at 21-32; Herbert dep. at 22-23.

(a) Herbert understood that his assignment on January 20, 1973, included providing assistance to Secret Service agents in the west half of Lafayette Park; Lindsey dep. exh. 1; Herbert dep. at 8, 12.

(b) Herbert had seen plaintiff demonstrating in the area of the White House on prior occasions and had been involved in checking his fifteenrday notice; ’Herbert dep. at 17-18.

(c) Niedringhaus understood that his assignment on January 20, 1973, included assisting Herbert in the west half of Lafayette Park; Niedringhaus dep. at 8, 10.

(d) Niedringhaus had seen plaintiff picketing in the White House area on prior occasions; Niedringhaus dep. at 6.

56. Niedringhaus, Herbert and Brady escorted plaintiff across the police line north of Lafayette Park and told plaintiff and Metropolitan Police officers that plaintiff was not allowed to return south to Lafayette Park. Mann heard the federal officers tell plaintiff that plaintiff was not allowed to return; Mann dep. at 22-24; Brady dep. at 44, 47-48; Herbert dep. at 27-29; Niedringhaus dep. at 27-29.

57. Plaintiff headed in another direction, away from Mann’s presence for some time and, when he returned, plaintiff told Mann that plaintiff had a right to return south to the area from which he had been removed. When plaintiff attempted to cross the police line in order to reenter that area, at about 11:45 a. m., Mann arrested him on a charge of failure-to-move-on; Mann dep. 25, 29-30; Mann dep. exh. 2; Monroe dep. at 12-13.

58. The deposition of officer Mann reveals that he arrested Saffron because Saffron had crossed the police line into a blocked off area:

Q: Okay. Now, did any particular event precipitate your arrest of Mr. Saffron: Anything he said or did?

A: What he did. He came back across the street into the area which was blocked off;

Mann dep. at 35.

59. Mann called a police wagon to transport plaintiff to a nearby precinct station. When the wagon arrived, a picture was taken of Mann standing next to the plaintiff. Plaintiff was frisked and handcuffed by the officers in the wagon crew. Plaintiff was transported in the police wagon to the precinct station and, after about an hour of additional detention, posted collateral and was freed. The failure-to-move-on charge was later dropped by the District of Columbia Corporation Counsel’s office; Mann dep. at 39-40, 42-43; Saffron dep. at 45-48, 54.

60. Defendant District of Columbia admits that the charge of failure-to-move-on did not properly apply to plaintiff.

61. At no time during his presence on the south side of Pennsylvania Avenue at West Executive Avenue, on the southwest corner of Lafayette Park, or at H. Street where he was arrested did plaintiff engage in a violent act or threaten anyone with violence; Brady dep. at 27, 50-51; Niedringhaus dep. at 36; Lindsey dep. at 30-31; Hill dep. at 28; Mann dep. at 27.

G. Planning With Respect to First Amendment Rights of Demonstrators at Inaugural Days Subsequent to 1973

62. Neither the Metropolitan Police, the Park Police nor the Secret Service promulgated, applied or disseminated, either individually or jointly, a plan or procedure for dealing with, and protecting, the First Amendment rights of lawful demonstrators and demonstrations in the vicinity of the White House and Lafayette Park area on Inauguration Day, 1977.

63. Neither the Metropolitan Police, the Park Police nor the Secret Service has yet promulgated, applied or disseminated, either individually or jointly, a plan or procedure for dealing with, and protecting, the First Amendment rights of lawful demonstrators and demonstrations in the vicinity of the White House and Lafayette Park area on Inauguration Day, 1981.

64. No modification in plan or procedure has been made as a result of this litigation and none is planned as to the Secret Service; Knight dep. at 39-40.

Plaintiff continues to appear carrying signs in front of the White House and alleges that he feels inhibited as to Inaugural Day picketing; Second Amended Complaint ¶¶ 49, 50.

65. Plaintiff did not attempt to appear or carry any sign in front of the White House on Inaugural Day, 1977.

II. CONCLUSIONS OF LAW A. Jurisdiction and Mootness

1. The Court has jurisdiction in this matter under 28 U.S.C. § 1331 (1976).

2. This case is not moot. Plaintiff has evidenced a pattern of demonstrating on the White House sidewalk over an eight year period. The fact that he has occasionally been sick and did not demonstrate on Inaugural Day 1977 does not disrupt that pattern. Plaintiff alleges that he is discouraged from the exercise of his First Amendment rights both during his daily picketing and on future Inaugural days; Second Amended Complaint ¶¶ 49, 50. Plaintiff has appeared in this Court in this case on numerous occasions; for example, portions of his deposition of November 16, 1978, were taken in the presence of the Court. The Court is convinced that plaintiff would continue to picket in the future and on future Inaugural days if he could do so without interference; the Court is also convinced that, given the current lack of regulations governing such conduct, plaintiff faces an uncertain reception on future Inaugural days. Thus plaintiff’s claim presents an ongoing case or controversy. Compare O’Shea v. Littleton, 414 U.S. 488, 495-98, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

B.' Official Defendants’ Liability for Plaintiff's Removal From White House Sidewalk and Failure to Promulgate Valid Plan or Regulations

3. Plaintiff had a constitutional right to engage in expressive conduct on the White House sidewalk on Inaugural Day 1973. That right may only be restricted by defendants according to non-discriminatory, articulated standards, in sufficient time for judicial review of a denial or restriction of his right, in accordance with the principles set out by our Court of Appeals in Quaker Action IV, supra; see Conclusions of Law 20, infra.

4. Official defendants Wells, Knight, Jefferson and the District of Columbia violated that right when they detained plaintiff and removed him from the White House sidewalk after failing prior to January 20, 1973, to promulgate regulations appropriate to Inaugural Day pursuant to the principles ultimately announced in Quaker Action IV, supra.

5. Had defendants promulgated and pursued a constitutional plan for the regulation of expressive conduct on Inaugural Day, plaintiff’s right to be present on the White House sidewalk would have been determined in advance and, if necessary, judicially reviewed." There is no evidence nor allegation here that plaintiff’s removal was occasioned by any emergency or any factor which would have justified summary removal, even if there had been a valid plan. Under the undisputed facts, therefore, the failure of defendants to promulgate and enforce a constitutionally-valid plan was the proximate cause of the violation of plaintiff’s constitutional rights on Inaugural Day 1973; Shifrin v. Wilson, 412 F.Supp. 1282, 1303 (D.D.C.1976).

6. Defendants’ failure since 1973 to promulgate Inaugural Day regulations constituted an ongoing violation of plaintiff’s constitutional rights and constitutes a continuing threat by defendants to impose the same restraints upon plaintiff’s expressive conduct on future Inaugural Days.

7. Although defendant Secret Service takes a lead in Inaugural Day planning, all three official defendants jointly share the responsibility for that planning; See Findings of Fact 24, 39, 40, 42, 43, 46, 47, 48, supra. Therefore, the official defendants representing the Secret Service, the Metropolitan Police and the Park Police are legally responsible for their past and ongoing failure to accord their Inaugural Day planning with the Constitution; See also Conclusions of Law 14-16, infra. It is irrelevant to this conclusion, and the Court need not find, that Secret Service agents personally participated in ordering or requesting Saffron’s removal from the White House sidewalk; See Findings of Fact 53, 54, supra.

8. The principles governing plaintiff’s right to engage in expressive conduct near the White House on Inauguration Day, the government’s right under certain circumstances to restrict that conduct and the constitutionally-permissible methods of so restricting it (including provision for judicial review of restrictions) are set out authoritatively in Quaker Action IV, supra. That case arose from an attempt by five organizations to hold demonstrations on the White House sidewalk and in Lafayette Park in 1969. Most of the groups had unsuccessfully applied to the Park Service for permits, pursuant to a requirement, neglected until 1967, that individuals obtain permits prior to use of National Park areas within the District for public gatherings; 36 C.F.R. 50.19 (1973); in reactivating the requirement in 1967, a numerical restriction on groups which would be granted permits was imposed; supra at 721.

The final chapter of the lengthy litigation, which generated four Court of Appeals decisions, represented a definitive statement of the principles to guide the regulation of expressive conduct in the White House vicinity, and applied those principles in reviewing the District Court’s evaluation of the existing regulations which had occurred in the context of a full trial. Earlier, the Court had overturned the entry of summary judgment for the government, concluding that the balancing of First Amendment and other rights involved “required the judgment of the court” and should not be based merely on a finding of reasonableness and substantial evidence in the administrative record; the question of the “safety of the President” and whether

officials involved ha[d] transformed the concern into an excessive preoccupation with security that is achieved at the unnecessary expense of First Amendment freedoms ... is too difficult, too delicate, too dependent on careful assessment and weighing of constitutional rights, to rest conclusively on the untested declaration of an executive official.

Quaker Action IV, supra, at 723.

The Court of Appeals identified the duties of the government in regulating expressive conduct and evaluated some of the interests to be considered in that regulation, an evaluation directly applicable to this case. The “proper course,” it concluded, is to balance First Amendment rights against other legitimate interests and to structure a scheme that does not “risk abuse of First Amendment rights through a broad censorship power or other improper application of theoretically acceptable restraints.” Id. at 725 (footnote omitted). It quoted a summary of guidelines laid down by the Supreme Court:

[Restrictions on expression are valid if (1) the “[regulation] furthers an important or substantial government interest,” (2) the “governmental interest is unrelated to the suppression of free expression,” and (3) the incidental restriction on alleged First Amendment rights is no greater than is essential to the furtherance of that interest.

Id. at 725-26, quoting Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F.Supp. 575, 584-85 (D.C.), aff’d mem., 409 U.S. 972, 93 S.Ct. 311, 34 L.Ed.2d 236 (1972).

Relevant here, the Quaker Action IV Court approved as significant several governmental interests advanced in justifying regulation, among them the “security and safety of the Executive Residence, its occupants and contents” and “inconvenience to vehicular and pedestrial traffic”; id. at 726. It also evaluated the First Amendment rights involved, rejecting definitively the view that expressive conduct is of secondary importance on park lands and concluding that the White House area is a “unique situs” for demonstration activity. It rejected the government’s contention that plaintiffs were not harmed by the restrictions because they could hold their demonstrations on the Ellipse instead of near the White House, saying:

there are unique First Amendment values in use of the White House sidewalk; and citizens seeking redress of grievances are not unreasonable if they propose to come to the front of the House rather than be shunted to the back door. Of course there may come a time when the crowd is so huge that it is reasonable to insist that all facilities [e. g. Lafayette Park] be used.

Id. at 733.

The Court also noted the corollary of its conclusion that the White House area constituted a “unique situs”:. “there is a need for a governmental mechanism for allocating the scarce time' and space resources . among competing applicants;” id. at 727. Thus, it concluded, a permit system is far preferable to a notice system; id.

In sum, Quacker Action makes it clear that plaintiff’s expressive conduct cannot be arbitrarily restricted or excluded from the White House vicinity and supports the Court’s conclusions 3 and 4 as to past and ongoing violations of plaintiff’s rights by official defendants. There are undoubtedly special circumstances relating to the vicinity of the White House on Inauguration Day that are inapplicable all other days. But the official defendants have a constitutional duty to confront these circumstances and deal with them in regulations developed in light of the principles announced in Quaker Action IV.

C. Liability for Plaintiff’s Arrest

(i) Arrest Pursuant to Incorrect Statute

9. Plaintiff was arrested while attempting to cross a police line; see Findings of Fact 57, supra. This action made him validly subject to arrest pursuant to D. C. Police Regulations, Art. 6, Sec. 5. Since the correct promulgation of that regulation is not in dispute, the Court need not reach the issue of the validity of the promulgation of Sections 5 and 6 of the Special Regulations for the Inaugural period, which sections the Court concludes would otherwise also have subjected plaintiff to arrest. While not deciding the issue, the Court would observe that the notice afforded by the valid Police Regulations should serve as notice of Sections 5 and 6 to the extent they cover the same conduct.

10. Although Saffron was charged under the wrong statute, his arrest by Officer Mann was valid and thus neither the District of Columbia nor Mann may be liable for damages for that arrest. The Court finds entirely unpersuasive the authority which suggests that an arrest made on one charge cannot later be justified by reference to another proper grounds for arrest. Those cases present little reasoning and are not helpful here; they generally involve attempts at post hoc rationalization where, for example, an individual had been improperly arrested for disorderly conduct and the prosecutor later argued that the individual might have been properly arrested for an unrelated and improbable traffic violation, e. g. Moran v. City of Beckley, 67 F.2d 161, 162-63 (4th Cir. 1933); Donovan v. Guy, 347 Mich. 457, 80 N.W.2d 190 (1956).

More persuasive was the action of this circuit in Washington Mobilization Committee v. Cullinane, 184 U.S.App.D.C. 215, 231, 566 F.2d 107, 123 (D.C.Cir.1977), in overturning the District Court’s conclusion that

The most egregious failings during the arrest and booking process, perhaps because there could be no reasonable excuses, were the refusal to advise arrestees of the specific charges being made against them .

The Court concluded that the lower court’s

conclusion cannot be supported. In Feeley v. District of Columbia, [128 U.S.App. D.C. 258, 387 F.2d 216] upon which the court relied, we held that an information upon which a defendant is tried must specify which of several potentially applicable statutes is the basis of the prosecution. The case does not hold that a policeman making an arrest must immediately advise the prisoner of the specific section of the statute or regulation he is charged with violating. A policeman on the scene cannot be expected to assay the evidence with the technical precision of a prosecutor drawing an information.

In United States v. Hobby, 275 A.2d 235, 237 (D.C.App.1971), the police and government prosecutor mistakenly charged an individual who allegedly possessed a shotgun with violation of a statute applicable only to concealed weapons. The Court concluded that

the state of mind of an officer who makes an arrest is not the relevant test of whether such action is valid. As the United States Court of Appeals for this circuit put it in Bell v. United States, 102 U.S.App.D.C. 383, 387, 254 F.2d 82, 86 (1958) “ . . . this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to this action; it is whether, in the situation in which he found himself, he had a reasonable ground to believe a felony had been committed . . . ”

See also Bond v. United States, 310 A.2d 221 (D.C.App.1973).

In sum, the Court concludes that failure to charge under the proper statute provides no basis for liability in this case.

11. Officer Mann acted in good faith; that is, he had reasonable grounds to believe that a crime was being committed and that his arrest of plaintiff was undertaken for the purpose of securing the administration of the law; Dellums v. Powell, 184 U.S.App.D.C. 275, 283, 566 F.2d 167, 175 (D.C.Cir.1977) (“Dellums I”); Mann dep. at 19, 24-25, 31, 35.

(ii) Liability for Arrest Because of Antecedent Events

12. Under some circumstances an individual may violate a law and defend against prosecution by pointing to that law’s unconstitutionality; Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); compare Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967) (unconstitutional injunction must be obeyed, only remedy being judicial relief through an appeal of the injunction). Thus, if plaintiff had been arrested and prosecuted for his presence on the White House sidewalk, a constitutional defense might be available to him against that prosecution.

The fact that he might have disobeyed a regulation or police order forbidding his presence at the earlier time, and then attacked the constitutionality of that regulation or order in court, however,' does not entitle him to violate other valid regulations or orders. After plaintiff was removed to Lafayette Park, he headed in another direction, and then somewhat later returned to Lafayette Park where he attempted to cross the police line; see Findings of Fact 57. He did not receive, in effect, immunity to return to the scene of the constitutional violation.

Although “but for” causation may exist between plaintiff’s illegal removal from the White House sidewalk and his later arrest, plaintiff’s own intervening illegal conduct in attempting to cross the police line, after being warned not to do so, destroys any proximate causation between the earlier events and the arrest. Assuming arguendo that the arrest was proximately caused by the earlier unconstitutional action, plaintiff might possess a good defense against a charge of crossing a police line. But the fact that he might not be convicted does not automatically present him with grounds for false arrest. Mann’s good faith belief in arresting Saffron, under the standard of Dellums I, supra, 184 U.S.App.D.C. at 283, 566 F.2d at 175, Conclusion 11, supra, renders the arrest privileged, even assuming that plaintiff could not be convicted because of the earlier events which brought him to Lafayette Park.

13. The Court concludes that defendant was entitled to summary judgment under either theory of liability.

D. Liability of District of Columbia for Plaintiff’s Removal From White House Sidewalk and Failure to Promulgate Valid Plan: The Damages Issue

14. With respect to claims by individuals against state and local governments, the traditional structure of remedies, in which equitable relief would not be available unless a legal remedy is either unavailable or inefficacious, may, on occasion, be reversed. Equitable relief is often the preferred remedy. This reversal is apparent from the line of cases beginning with Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which, disregarding the fiction that the remedy runs against an individual and not the sovereign, permitted broad equitable relief against states but was hostile to remedies requiring expenditure of money, particularly remedies in the nature of damages or relating to past state conduct. See Edelman v. Jordan, 415 U.S. 651, 669, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The inversion of the normal structure of remedies has also been recognized in the cases which established that, where equitable relief against federal officials would be unavailing, citizens are entitled to sue such officials for damages resulting from invasion of constitutional rights. In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a case involving a warrantless entry into a home and arrest, the Court recognized a federal cause of action under the Fourth Amendment for which damages were recoverable for injuries resulting from federal agents’ violation of that amendment. In passages later adopted by the Court, Justice Harlan wrote in concurrence:

. it is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. It will be a rare case indeed, in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court. However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit. Finally, assuming Bivens’ innocence of the crime charged, the “exclusionary rule” is simply irrelevant. For people in Bivens’ shoes, it is damages or nothing.

Id. at 409-10, 91 S.Ct. at 2012.

He also noted some of the practical considerations in deciding whether a damages remedy should be implied:

the experience of judges in dealing with private trespass and false imprisonment claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights.

Id. at 409, 91 S.Ct. at 2011.

The same, of course, may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted.

Id. at 409, n.9, 91 S.Ct. at 2011.

In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court recognized, a right to recover damages for violation of the Due Process Clause of the Fifth Amendment. It endorsed Justice Harlan’s concurring language in Bivens and summarized the factors for determining the propriety of a damages remedy:

Bivens, supra, holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are “no special factors counselling hesitation in the absence of affirmative action by Congress.” .

First, a damages remedy is surely appropriate in this case. “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” . . . relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See id., at 409 [91 S.Ct. 1999 at 2011] (Harlan, J., concurring in judgment). Litigation under Title VII of the Civil Rights Act of 1964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U.S.C. § 2000e-5(g). Moreover, since respondent is no longer a Congressman, . . . equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, “it is damages or nothing.” .

Id. at 2276-77.

The reasoning and holding of Bivens is pertinent to the determination whether a federal court may provide a damages remedy. The question of the appropriateness of equitable relief in the form of reinstatement is not in this case, and we consequently intimate no view on that question.

Id. at 2277 n. 24.

15. With respect to the events prior to Saffron’s attempt to cross the police line in Lafayette Park, a useful distinction may be drawn between two wrongs involved. The • Court’s conclusion with respect to plaintiff’s First Amendment rights makes it clear first that he was wronged when he was interrupted in his picketing and removed by Park Police from the White House sidewalk. Secondly, it is clear that the failure to have a plan to protect his rights or to restrict his conduct by appropriate procedures constitutes a wrong which has been ongoing since January 20, 1973, which at the least may chill his conduct on future Inaugural Days. This distinction is useful as it is apparent that responsibility for each tort is not identical.

16. For the purpose of this decision, the Court assumes that the holding of Dellums v. Powell, 184 U.S.App.D.C. 324, 328-32, 566 F.2d 216, 220-24 (D.C.Cir.1977) (“Deliums II”) that the District may be found vicariously liable for the constitutional torts of its employees, has been overruled sub silentio by Monnell v. New York City Dept. of Social Services, 436 U.S. 653, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which rejected vicarious liability for actions under 42 U.S.C. § 1983 (1976).

(a) Liability for D. C. Employees’ Actions.

Even if responsibility is shared with other agencies, the District may be liable if its employees had a role in the events which form the basis for liability. Dellums II, supra, for example, rejected the claim that Metropolitan Police Chief Wilson was not liable for his role in the false arrest and violation of First Amendment rights there:

. [Ejvidence would support a finding that Chief Wilson collaborated on the charge upon which arrests were to be made, and further that he advised [Capitol Police] Chief Powell against taking additional steps to ensure the effectiveness of dispersal orders at a time when there was some doubt that the orders had been heard. It is also undisputed that Chief Wilson retained personal operational control over all Metropolitan Police officers on the scene and could have withdrawn them had he thought the arrests unjustified. This was sufficient proof of Chief Wilson’s independent involvement in the arrest process to make his liability one for the jury to decide.

Id. 184 U.S.App.D.C. at 327, 566 F.2d at 219.

As found above, however, no Metropolitan Police or D. C. officials participated in the decisions that were made or the actions that occurred in front of the White House. Although communication channels existed, and although the official defendants cooperated both in planning and on Inaugural Day itself, the Park Police involved in plaintiff’s removal were under the command of Park Police officials. No District employees had sufficient direct involvement to permit liability for plaintiff’s removal on this basis.

(b) Liability for Park Police Actions: Borrowed Servant Theory

To establish a causal connection between the actions of the Park Polic