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Silent Dancers Violently Arrested Jefferson Memorial

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CapitalistSwine
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Sure, when it comes to private property, the owner can make any irrational rules they want. But since we're talking about rules being set by government which has near-infinite force backing it up, it is proper to demand that the rules the government makes are rational and sensible. You seem to suggest that since the government is the custodian of property here, then they can make whatever rules they want until it becomes private property and that people should just deal with it like private property owners having irrational/stupid rules. Personally, I'm saying that *because* the government has control over the memorial, any person should demand a standard that is expressed on the memorial itself. That I can't simply go into area 51 as I please has reason behind it, while not dancing at the Jefferson Memorial is arbitrary.

This.

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Simply reviewing the use of force, assuming a lawful arrest, here is how I see it. When an officer gives the order to submit to arrest, anyone who is not fully compliant is going to be met with SOME level of force used against them. There are varying levels of resistance in the video, but most of the people being arrested full into the category of "active resisters", in terms of the use of force parameters. By this I mean, they are actively, physically opposing the arrest, short of assaulting the officer (pulling arms away, walking away, etc.). Passive resistance refers to a person who is not moving or pulling away, but simply remaining stiff or tense to avoid arrest. Aggressive resistance is when a person is attacking or assaulting the officer in an attempt to avoid arrest.

In the case of the active resisters, the use of "soft control" techniques is appropriate. "Soft control" techniques involve grabbing, applying pressure points, bending joints, etc. in an effort to affect physical control of the resisting subject. In addition, many jurisdictions and courts recognize the deployment of chemical (pepper spray) or electrical devices (TASERS) as appropriate responses to active resisters. Jurisdictions and courts recognize that while officers are expected to some degree to be exposed to physical hazards in the performance of their duty, they do not necessarily have to place themselves in jeopardy in these situations when circumstances allow them to use tools at the appropriate force level.

The major use of force problem I see in this video occurs when the one officer is arresting the guy in the white "Disobey" shirt at 3:00. I reasonably certain that while the "body slam" will likely be deemed an appropriate use of force by existing standards for arresting an "active resister", the chokehold is a problem in my opinion. Chokeholds are banned from use (except in exigent circumstances) by many departments. Additionally, a "carotid chokehold" is considered to be a lethal use of force by many jurisdictions and departments. I would be willing to bet the chokehold as used is not consistent with their use of force policy.

However, I would echo Dante's concern for the police bashing that typically follows an event like this. In particular I would add the tendency to view the officer as acting maliciously in the use of force as opposed to considering ignorance of policy or poor training.

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I watched another video featuring the organizer of this protest, and by listening to him it clearly is a protest, and he described what he thought the purpose of the police was in America.

Starting at about 1:12;

http://dmvallaccess....source=activity

Now, however noble he may be in his fight against the unjust banning of dancing in a public place, he clearly has a distorted aim at who is at fault. He's blaming the police as if they passed the laws against public dancing. Then he claims that only 5% of the police force are "good" people who image is tainted by the brutal thugs that make up the other 95%. His views of policing in America are nothing short of moronic.

Edited by RationalBiker
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Now, however noble he may be in his fight against the unjust banning of dancing in a public place, he clearly has a distorted aim at who is at fault. He's blaming the police as if they passed the laws against public dancing.

The enforcer of said rules is always at fault, too. To clarify, I'm only speaking of *when* a law/rule is enforced, because for anyone to be a cop these days is bound to run into a case where they have to choose to enforce an unjust law or not. I'm not even concerned so much about the force used on them, I think it was wrong to do anything at all. They should have been allowed to dance even if the rule was already in place. What I'm talking about here is more of a side issue of how much a cop should be blamed for enforcing bad laws.

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Do you have all the necessary facts to determine that? Don't we appoint judges and/or select juries for the purpose of determining whether laws were broken or not?

Yes I do. There is NO ACTUAL LAW. It was an arbitrary judge ruling extended arbitrarily. Why is the judge being appointed god-like authority in this instance when we are well aware of, and can point to numerous, numerous instances of where they have made grossly unethical or unlawful rulings?

From an earlier post:

A few years ago, a young woman was arrested at the Jefferson Memorial for silently dancing, alone. The other day, a judge upheld the officer's decision to arrest her. His argument was essentially: we are the government. We have the power. Obey or else. There is no rule against dancing at the Jefferson Memorial.

To answer the earlier question, I am upset becaues it seems like Objectivists sometimes care about the constitution as much as the liberals do. Regardless of whatever else happened, they were required by law to state which law they were violating that justified the action that was about the be taken, and they refused to do this multiple times.

I would also like to see a proper refutation of what Louie said, of which CapitalistSwine quoted in his last post. I think this is a key element of this and I won't be satisfied with the position of the others here until a good answer is given on that point. It graetly disturbs me how often Objectivists seem to want to justify the governments actions whenever crack downs happen, or with the New York Mosque (when clearly, according to our laws, nothing could be done at that time) because it fits their own little wishes, but then they condemn to the highest order almost everything else the government does, it's almost like some Objectivists have an inner power-trip that gets set off when these things happen. I just don't get it, and it is frustrating.

Edited by Jennifer
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The enforcer of said rules is always at fault, too. To clarify, I'm only speaking of *when* a law/rule is enforced, because for anyone to be a cop these days is bound to run into a case where they have to choose to enforce an unjust law or not.

No, no, no. A police officer does not get to decide what laws are just or unjust. He is sworn to do his duty in upholding the laws of the land and that means that he is supposed to be absolutely and completely impartial as to the efficacy, legitimacy or application of any and all laws.

You are confusing the role of police officer with the role of legislators and the courts who's job it is to ensure laws enacted are just.

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Yes I do. There is NO ACTUAL LAW. It was an arbitrary judge ruling extended arbitrarily. Why is the judge being appointed god-like authority in this instance when we are well aware of, and can point to numerous, numerous instances of where they have made grossly unethical or unlawful rulings?

I'm not sure if you know about how arrests work, but in order for those people to be defendants in a court of law, they have to be charged with a violation of ACUTAL LAW first; they cannot be charged with violating a judge's ruling.

So when an officer arrests someone (and assuming they do not issue a summons), they take them before a magistrate, the magistrate is told what the officer observed and what law the officer thinks was violated and the magistrate decides whether or not he/she thinks there is probable cause the law was violated. If the magistrate decides there is probable cause, he issues a warrant for an alleged violation of a law and then they go before the court.

In other words, there is no mechanism for them to stand trial in court unless they were charged with violating an ACTUAL LAW. Now, whether or not that law is applicable to the action done is another story, but they had to have been charged with violating SOME ACTUAL LAW before they would go to court.

Now, in the ruling you are talking about (referenced here), the officers did not arrest the people in the video and charge them with violating a federal judge's ruling, they charged them not for Dancing in Public, but with Demonstrating without a Permit, an ACTUAL LAW. Regarding the previous case that led to the ruling, the original case's charges were dismissed. That does not necessarily mean that people cannot still be charged with a violation of that law. The original dismissal may have been because perhaps some elements of the crime were not present.

Now, lest you be doubtful that they were demonstrating, I think you should watch the video I linked above where the organizer openly admits it was a demonstration, presumably without the required permit.

Edited by RationalBiker
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For those that may doubt where I stand outside of what I have already said, I think the law about requiring a permit to peacefully demonstrate on public property is improper. What I have been addressing so far is whether or not the police were acting within the province of the existing law and whether or not their uses of force were acceptable based on what I saw in the video and what I understand of the use of force continuum. I'm not spending a lot of time arguing about the theory of what is right or wrong here, primarily on the actual situation as it is at the moment.

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I have an uncle that is part of SWAT, I have a cousin that is a police officer, and I have a family friend that is part of security for national park and memorial grounds in D.C., i.e. the area of jurisdiction that this memorial falls under. Interesting that every single one of these people seems to think that this was poorly handled, that these officers were out of line, and that they had no right to proceed in the way they did considering they broke the law by violating numerous Constitutional rights provided to all citizens, such as being told specifically what law you are being reprimanded for breaking.

Interesting to you perhaps, but since they are not here to argue any of their positions, your representations of their opinions are hardly relevant. I already have 25 years experience as an officer and a sergeant in one city police department and I'm closing in on my 26th in a second career in law enforcement as an airport cop. I'm not speaking from my couch while watching Spongebob either.

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Regardless of whatever else happened, they were required by law to state which law they were violating that justified the action that was about the be taken, and they refused to do this multiple times.

Out of curiosity, what law are you referring to here?

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For those that may doubt where I stand outside of what I have already said, I think the law about requiring a permit to peacefully demonstrate on public property is improper. What I have been addressing so far is whether or not the police were acting within the province of the existing law and whether or not their uses of force were acceptable based on what I saw in the video and what I understand of the use of force continuum. I'm not spending a lot of time arguing about the theory of what is right or wrong here, primarily on the actual situation as it is at the moment.

Related to the topic but maybe not to this particular case, there are laws made, such as "Disrupting the public peace" or some such like that, which, from my perspective anyway, are made with no intent but to give a cop the ability to arrest anyone, anywhere, if they cannot think of a more applicable law to use as a reason for the arrest.
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Related to the topic but maybe not to this particular case, there are laws made, such as "Disrupting the public peace" or some such like that, which, from my perspective anyway, are made with no intent but to give a cop the ability to arrest anyone, anywhere, if they cannot think of a more applicable law to use as a reason for the arrest.

I'm not going to address your perspective, largely because there are too many different jurisdictions with too many different variations and applications of such laws that I see making a generalization like that somewhat difficult to substantiate. Over the last couple of decades, during my time in law enforcement, higher courts have been addressing the vagueness of many such statutes as well as the application of such statutes in order to address how subjectively they could be applied as you are suggesting. Here is a wiki reference. So, though such laws and applications may exist, it is the job of the courts to address the propriety of the law and the officer's arrest. Additionally, it must be pointed out again that the officers themselves have no means to pass such laws in order to give themselves carte blanche to arrest anyone they want.

Meanwhile, I'm patiently waiting for Jennifer to answer my above question with, "The Sixth Amendment." I'm hoping that before she does, she looks up the Sixth Amendment and some summaries and/or case law that describe what it mean with reference to advising someone of the charges against them. If she finds some that state an officer must advise a person ON ARREST what their charges are, I'll be very surprised.

Edited by RationalBiker
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You are confusing the role of police officer with the role of legislators and the courts who's job it is to ensure laws enacted are just.

I'm not confusing anything. It's the same sort of issue as "should a soldier obey all orders without question?" except the context is involving police officers. There is always some sort of blame for the person doing the obeying when one isn't forced to obey.

Edited by Eiuol
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Over the last couple of decades, during my time in law enforcement, higher courts have been addressing the vagueness of many such statutes as well as the application of such statutes in order to address how subjectively they could be applied as you are suggesting. Here is a wiki reference. So, though such laws and applications may exist, it is the job of the courts to address the propriety of the law and the officer's arrest. Additionally, it must be pointed out again that the officers themselves have no means to pass such laws in order to give themselves carte blanche to arrest anyone they want.

I figured you'd know a bit about it, that's why I brought it up. :) "My perspective" is super limited, but it happened to me nonetheless, so I wondered if you knew how prevalent that sort of thing was.

If one is willing to spend the time fighting it in court, these laws would probably disintegrate case-by-case, no matter how prevalent (or not, as you say it's becoming) they may be. However, like traffic infractions, the penalty, usually a misdemeanor, is too low for most people to justify the time, money, and risk. Despite all that, a good cop is probably not going to use these laws inappropriately.

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I'm not confusing anything. It's the same sort of issue as "should a soldier obey all orders without question?" except the context is involving police officers. There is always some sort of blame for the person doing the obeying when one isn't forced to obey.

You are mistaken a soldier has the responsibility to obey all orders except those which are "Manifestly unlawful" At least that is what the Queens Regulations and Orders state in Vol 2. I'm quite sure the UCMJ has a similar caveat.

So had the lead Police officer or some judge ordered the officers to shoot the dancers then they have every right to refuse to carry out his orders. However, as has been stated in a number of ways, by several different people in this thread, these people were arrested for an offense which is real, namely protesting without a permit. All the objections about the rational for, and "justice" of such a law aside it remains in effect and the police have the responsibility to perform their duty.

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I am upset becaues it seems like Objectivists sometimes care about the constitution as much as the liberals do.

The thing to care about is principles, if you find an Objectivist that doesnt care about principled action in the context of Govt. (or any context) he probably doesnt know what hes talking about.

It graetly disturbs me how often Objectivists seem to want to justify the governments actions whenever crack downs happen, or with the New York Mosque (when clearly, according to our laws, nothing could be done at that time) because it fits their own little wishes, but then they condemn to the highest order almost everything else the government does, it's almost like some Objectivists have an inner power-trip that gets set off when these things happen.

Again, a respect for principled action is the cause of most of these viewpoints. I wont get started on the mosque, Ill just say that those who were calling for Govt intervention were not taking a principled approach in my opinion. Anyway, the Government may not always act on the proper principles, (as in this case, specifically) but Id take a wrongheaded principled approach over cops deciding at whim which laws to enforce, and which to ignore.

The fact is, these people were out there with the purpose of getting arrested and making the cops and government look stupid in the process. They succeeded in making themselves, the cops, and most media outlets look stupid. Whether that will open anyones eyes to the larger issue of statist policies concerning propery, public demonstration, or dancing is yet to be seen. Im not holding my breath. But right now, Im in the "their cause is stupid" camp.

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Out of curiosity, what law are you referring to here?
If I remember the video right, some protesters asked the cops what law they were violating. I guess that's what Jennifer is talking about. To what extent does a cop have to explain the reason for arrest to the person being arrested? Edited by softwareNerd
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If I remember the video right, some protesters asked the cops what law they were violating. I guess that's what Jennifer is talking about. To what extent does a cop have to explain the reason for arrest to the person being arrested?

My understanding(and I'd defer to a professional on this)is that they have some time frame within which they must make a charge or let you go. Typically 48 hours or so.

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I understand what you're saying,..., while not dancing at the Jefferson Memorial is arbitrary.

First, the regulations for the video we saw were in regard to demonstrating, but even with regard to the original dancer, I don't think that it's entirely arbitrary.

Imagine building a monument to Jefferson as a private individual. If you build a nice place like that "to contemplate and wax philosophical" or whatever, leaving it completely open means that maybe a local DJ will start playing some swing jazz every night and the place will be packed full of swing dancers. Nothing wrong with swing dancing but it changes the tone of the place and the thing which you built primarily for its meaning loses its meaning. Others who visit it can only accept the new jazzy culture of the place and can no longer experience it as the builder intended. I could entirely imagine making those exact rules on my own Jefferson Monument were I to build one. Property has purpose and must be maintained by those who own it. In this case it's the government.

Tell me, how is this a poor battle picked? It's a pretty direct way of showing that public property is a bad concept, non-invasive towards people who want to spend time at the memorial, and likely minimal consequences beyond maybe a night in jail.

I haven't read or heard anything so far in all of the hoopla to suggest that they made a principled argument as to why government should not be in the business of owning property. Mostly just complaints that they have the right to behave in some way on this "public property," and have an immediate notification of a a police officer's intent.

Without maintaining that principled track regarding property, the argument is lost because in disagreeing with their particular bylaws and regulations you necessarily imply agreement with their right to own the property in the first place. This is why libertarianism generally fails. By looking at the surface of freedom you'll end in ignoring the underlying mechanisms. It also distracts from the legitimate argument which could be made when everyone's busy screaming about their right to dance on that one piece of marble.

In short, it's poorly picked because it means that you've let your opponent define the terms which in rhetoric means that you've already lost 5 minutes from now.

Edited by aequalsa
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If I remember the video right, some protesters asked the cops what law they were violating. I guess that's what Jennifer is talking about. To what extent does a cop have to explain the reason for arrest to the person being arrested?

The Sixth Amendment requires the police to inform the arrestee of the charge or charge once they are formally being charged, like when the are in front of the magistrate. The purpose of informing the arrestee the nature of the charges was to give them them adequate time to formulate a defense for court. The charges must be accurately described. To my knowledge the law does not require that notification to be instantly provided upon arrest.

I suspect that some folks think they have a legal right to know immediately so they can argue or decide to submit at the time of arrest. The authority of arrest and execution of that authority is not a democratic process. Once the officer initiates the arrest procedure, the arrestee is legally required to submit regardless of their agreement with the charge or charges.

I'm reasonably sure the officers in that video adhered to the requirements of the Sixth Amendment.

Now, it is possible for a department to have a stricter policy regarding when they want officers to inform arrestees of charges. In most instances, it is probably prudent up inform them at the time of arrest or very shortly after if the situation is under control, but that is separate from the legal requirement. I think the specific amount of time a prison can be detained before formally charging them can vary somewhat based on the circumstances and whether not the officers need some additional time to conduct a more thorough investigation. When that investigation is through or reaches a dead end, the police have to ' put up or shut up' so to speak.

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Yes I do. There is NO ACTUAL LAW.

Wrong.

36 C.F.R. § 7.96(g)(2) regulate “demonstrations” which are defined in the immediately previous numbered subparagraph Id.§ 7.96(g)(1)(i).

The protest is about the case and court decision Oberwetter v. Hilliard, 680 F. Supp. 2d 152 (D.D.C. 2010)

The protesters in the videos linked to in this thread should know very well the regulation and enabling law they are protesting because it is cited in the court opinion they supposedly care so much about.

The relevant sections of reasoning I quote here (sans quote block). All the reasoning applied in that case looks to apply equally well to the incidents shown in the videos.

II

As a threshold matter, Oberwetter contends that the

National Park Service misread its own regulations in treating

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

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

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

Corp. v. EPA

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

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

Service’s interpretation of its regulations could lead to

criminal sanctions against Oberwetter, our deference is

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

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

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

required greater clarity in draftsmanship than in civil contexts,

commensurate with the bedrock principle that in a free

country citizens who are potentially subject to criminal

sanctions should have clear notice of the behavior that may

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

Envtl. Servs., Inc. v. EPA

, 937 F.2d 649, 654 (D.C. Cir. 1991).

We are satisfied that the Regulations give fair notice that

expressive dancing is prohibited inside the Jefferson

Memorial.

The Regulations provide that, within the park areas of the

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

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

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

picketing, speechmaking, marching, holding vigils or

religious services and all other like forms of conduct

which involve the communication or expression of views

or grievances, engaged in by one or more persons, the 6

conduct of which has the effect, intent or propensity to

draw a crowd or onlookers. [The] term does not include

casual park use by visitors or tourists which does not

have an intent or propensity to attract a crowd or

onlookers.

Id.§ 7.96(g)(1)(i)

Oberwetter argues that her silent expressive dancing was

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

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

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

examples, she argues, her expressive dancing was not an

“organized group activity in which a uniform message is

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

claims that her conduct falls within the exception for “casual

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

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

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

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

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

§ 7.96(g)(1)(i).

The district court properly rejected Oberwetter’s

arguments. Under the Park Service Regulations, a

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

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

expressive dancing falls within the spectrum of examples of

prohibited activities, which range from “the boisterousness of

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

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

Oberwetter’s dancing was a conspicuous expressive act with a

propensity to draw onlookers. True, it occurred close to

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

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

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

other prohibited activities of “picketing, speechmaking,

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

expressive dancing might not draw an audience when nobody

is around. But the conduct is nonetheless prohibited because it

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

attention and distracting from the atmosphere of solemn

commemoration that the Regulations are designed to preserve.

Taking another tack, Oberwetter argues that even if she

engaged in a demonstration inside the Memorial, she was free

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

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

fewer to demonstrate without a permit “provided that the

other conditions required for the issuance of a permit are

met.” 36 C.F.R. § 7.96(g)(2)(i) (emphasis omitted). She

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

permits may be issued authorizing demonstrations or special

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

circular portion of the Jefferson Memorial enclosed by the

outermost series of columns, and all portions on the same

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

official annual commemorative Jefferson birthday ceremony.”

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

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

conditions at all for the issuance of a permit for

demonstrations inside the Memorial, and so groups of 25 or

fewer must be allowed to demonstrate there.

This argument can be readily rejected. As the district

court rightly observed, the much more natural reading of the

Regulations is that being outside of the Memorial is a required

condition for any demonstration, meaning that, aside from the

official birthday ceremony, no demonstrations of any size are

allowed inside the Memorial.

III

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

First Amendment protects her right to engage in silent

expressive dancing inside the Jefferson Memorial. Because the

First Amendment “affords protection to symbolic or

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

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

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

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

presents is whether she had the right to perform her dance

inside the Jefferson Memorial.

We analyze Oberwetter’s claim under the familiar

“public forum” doctrine, which divides government property

into three categories for purposes of First Amendment

analysis. The “traditional public forum” includes public areas

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

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

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

government must respect the open character of these forums,

and can only impose speech restrictions that are “narrowly

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

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

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

comprises “public property which the State has opened for

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

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

restricted to particular speakers or purposes. Third is the

“nonpublic forum,” which encompasses government property

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

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

the forum for its intended purposes, communicative or

otherwise, as long as the regulation on speech is reasonable

and not an effort to suppress expression merely because

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

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

property, has power to preserve the property under its control

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

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

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

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

but what purpose it serves, either by tradition or specific

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

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

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

adopting “a working presumption that sidewalks, streets and

parks are normally to be considered public forums.”

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

We then examine the history and characteristics of the

particular property at issue, mindful “that when government

has dedicated property to a use inconsistent with conventional

public assembly and debate . . . then the inconsistency

precludes classification as a public forum.” Id.

The district court properly concluded that the area inside

the Jefferson Memorial is a nonpublic forum. As a general

matter, the interior space of national memorials has not

traditionally “been used for purposes of assembly,

communicating thoughts between citizens, and discussing 10

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

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

quotation marks omitted). National memorials are places of

public commemoration, not freewheeling forums for open

expression, and thus the government may reserve them for

purposes that preclude expressive activity. Oberwetter points

out that the Jefferson Memorial is located within the National

Park system, and that public parks are quintessential examples

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

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

and variegated to be painted with a single brush for purposes

of forum analysis. “Presumably, many national parks include

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

which never have been dedicated to free expression and

public assembly, would be clearly incompatible with such

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

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

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

areas within a large public forum may be nonpublic if their

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

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

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

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

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

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

In creating and maintaining the Jefferson Memorial in

particular, the government has dedicated a space with a

solemn commemorative purpose that is incompatible with the

full range of free expression that is permitted in public

forums. Oberwetter alleges that visitors to the Memorial

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

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

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

the Park Service Regulations have sought to

“protect[] legitimate security and park value interests,

including the maintenance of an atmosphere of calm,

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

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

Regulations specifically identify the interior of the Jefferson

Memorial as a place where visitors may not engage in

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

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

Visitors to the Memorial interior must ascend a stairway,

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

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

Oberwetter has pled no facts suggesting that they allow

visitors to engage in disruptive demonstrations. Having thus

created and maintained the Memorial as a commemorative

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

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

celebrating Mr. Jefferson.

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

status as a nonpublic forum. Visitors are not invited for

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

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

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

into ‘public forum’ property merely because the public is

permitted to freely enter and leave the grounds at practically

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

The government conducts an official ceremony for Jefferson’s

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

of government speech rather than an open invitation for

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

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

Oberwetter has made no allegation that the Memorial was

either a traditional public forum or designated public forum

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

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

government property is not automatically a public forum

“merely because the government has for a time stayed its

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

Nor is this case like Grace, where the Supreme Court

held that the grounds surrounding the Supreme Court building

could not be deemed a nonpublic forum because there was

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

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

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

characteristics of the Jefferson Memorial clearly delineate the

nonpublic forum. The ceiling dome sits atop a circular

colonnade, marking out a distinct memorial space. The clear

boundaries of the Memorial also distinguish it from the

restricted-speech zone in Henderson, which we struck down

in part because it extended far beyond the Vietnam Veterans

Memorial and encompassed public lawns and sidewalks that

appeared “indistinguishable from ordinary sidewalks used for

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

Having determined that the Jefferson Memorial is a

nonpublic forum, we have little trouble concluding that the

Park Service Regulations are “viewpoint neutral and

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

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

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

Regulations plainly do not discriminate on the basis of

viewpoint, but rather prohibit disruptive speech regardless of

its message. Oberwetter argues that the government engages

in viewpoint discrimination by hosting its own official

birthday ceremony in the Memorial while excluding her

celebratory dance. This argument fails because the

government is free to establish venues for the exclusive

expression of its own viewpoint. See Pleasant Grove v.

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

government erects a monument on public property, it is not

obligated to allow other monuments expressing alternative

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

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

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

to hold that the government may not favor its own expression

inside the Jefferson Memorial, which was built by the

government for the precise purpose of promoting a particular

viewpoint about Jefferson.

We have noted previously that the Park Service has a

substantial interest in promoting a tranquil environment at our

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

interest in maintaining a tranquil mood at the [Vietnam]

Memorial wall is similar to ones that the Supreme Court and

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

government has reasonably advanced its interest in tranquility

because, unlike in Henderson, the restriction on expressive

activity does not sweep beyond the actual Memorial space.

Outside the Jefferson Memorial, of course, Oberwetter and

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

content.

IV

Finally, we turn to Oberwetter’s claims against Officer

Hilliard under Bivens v. Six Unknown Named Agents, 403 14

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

violated her First and Fourth Amendment rights by infringing

her right to free expression, arresting her without probable

cause, and subjecting her to excessive force. “Although

government officials may be sued in their individual

capacities for damages under Bivens, qualified immunity

protects officials from liability ‘insofar as their conduct does

not violate clearly established statutory or constitutional rights

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

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

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

evaluating a claim of qualified immunity, we first “determine

whether the plaintiff has alleged the deprivation of an actual

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

whether that right was clearly established at the time of

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

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

Hilliard’s alleged conduct did not violate Oberwetter’s

clearly established constitutional rights. She had no First

Amendment right to stage an unlawful performance inside the

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

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

arresting her for no good reason after she questioned his

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

her questioning Hilliard, but rather by her failure to comply

with his lawful order during the course of her unlawful

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

existence of probable cause, which depends “on an objective

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

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

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

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

(1985). Hilliard was objectively justified in arresting

Oberwetter because he observed her breaking the law.

Oberwetter’s remaining Bivens claim is that Hilliard

violated the Fourth Amendment by using excessive force

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

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

officers have authority to use “some degree of physical

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

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

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

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

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

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

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

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

including the severity of the crime at issue, whether the

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

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

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

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

allowance for the fact that police officers are often forced to

make split-second judgments—in circumstances that are

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

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

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

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

could have believed in the lawfulness of his actions.”

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

Although Oberwetter’s alleged violation was far from

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

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

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

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

police officer’s request to stop and answer some questions

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

the man eventually stopped and “was not moving or offering

any resistance,” the officer “forcefully pressed upwards on

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

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

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

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

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

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

did not use more force than reasonably appeared necessary to

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

omitted).

The same factors are dispositive in the present case.

Oberwetter admits in her complaint that before she was

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

leave the Memorial. She also admits that she was

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

in our view could have caused Hilliard to be reasonably

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

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

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

circumstances it was not clearly unreasonable for Hilliard to

take decisive action to subdue Oberwetter quickly and

forcefully, thereby reducing the risk of interference or escape.

Given that some force may have appeared reasonably

necessary, Hilliard’s alleged actions were not markedly

different from what we would expect in the course of a

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

cause Oberwetter any serious bodily injury tends to confirm

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

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

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

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

degree of force was reasonable).

In light of these considerations, we agree with the district

court that Oberwetter’s complaint has failed to state a

sufficient claim that Hilliard’s actions were beyond the pale

of reasonableness as established by our case law.

V

The judgment of the district court is Affirmed.

The only slight possibility of getting the law changed by legal means is hinted at in numbered footnote 3.

3

Because Oberwetter brings an as-applied rather than a facial

challenge, we do not address whether the Regulations could survive

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

Grange v. Wash. State Republican Party

, 552 U.S. 442, 449 n.6

(2008).

The overbreadth grounds don't look to be successful either in my opinion, just based on the case law cited here concerning the Vietnam Veterans Memorial. The Park Service might be persuaded to change its regulations (by petition and by working through the Congress NOT demonstrations), but no constitutional issue is going to compel it to change.

To answer the earlier question, I am upset becaues it seems like Objectivists sometimes care about the constitution as much as the liberals do. Regardless of whatever else happened, they were required by law to state which law they were violating that justified the action that was about the be taken, and they refused to do this multiple times.

That is not true, but Rationalbiker has addressed this. Maybe some states do that, but within D.C. only Federal law applies.

I have an uncle that is part of SWAT, I have a cousin that is a police officer, and I have a family friend that is part of security for national park and memorial grounds in D.C., i.e. the area of jurisdiction that this memorial falls under. Interesting that every single one of these people seems to think that this was poorly handled, that these officers were out of line, and that they had no right to proceed in the way they did considering they broke the law by violating numerous Constitutional rights provided to all citizens, such as being told specifically what law you are being reprimanded for breaking.

Find a relative who is a lawyer and get his opinion. Emotional reactions and instant opinions often differ from the well-considered conclusion. The law is not part of philosophy, it is a specialty like economics or physics. An intuitive sense of justice is no more reliable than an intuitive sense for physics or an intuitive sense for economics.

Here is a relevant video The Clash - I Fought the Law

Edited by Grames
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Update for anyone that cares:

As anyone that has read this thread is aware, they decided to organize another protest at the Jefferson Memorial, this one drew out quite a lot more people, but it was handled much differently from last time, videos that I could find are below:

http://www.ustream.tv/recorded/15162198

Looks to be something like 100 people, basically standing around outside of the steps of the memorial (as the police blocked out all of the entrances) with signs and some people speaking.

This took place today at 10am and was streamed through Ustream.

Edited by CapitalistSwine
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  • 4 weeks later...

This is a somewhat old thread but I think that I have a significantly distinct opinion here that warrants commenting.

First, there was the accusation that this was a poorly picked battle, that they should have focused on something that "hurts the country" more. I vehemently disagree with that analysis. What hurts the US, or any country for that matter, more than non-objective law? And is it not the epitome of non-objective law if a judge decides that the decision of a random police officer trumps the law, that a police officer may decide to arrest a girl for doing something that no law prohibits her from, and that this constitutes law? I am relying here on CapitalistSwine's characterization of the background of this case.

Further, it was said that the police were justified in arresting these people, if not the girl in the original case, because they were protesting on public property without a license. Again, I disagree. Any kind of objective law could impossibly define "protesting" in such a way as to include behavior that antagonizes no one (I did not see any signs or shouting, which would kind of defeat the whole purpose of "silent dancing", also as outlined by Adam Kokesh himself), and obstructs no one from using those facilities. This is very much different from the kind of protest that blocks public roads etc., where it is correct for the government to break it up so long as it's "public property".

What would have been proper behavior if the police were aware that an unlicensed protest was going to take place, in my opinion? This: to stand by, watch, and interfere if and when this "protest" reaches a level that can be properly termed a "protest", rather than unobstructive private dancing.

Lastly, it is simply revolting to see that such an abomination took place (and remember, the place wasn't chosen at random, it was the place that the original case took place at) in the memorial to Thomas Jefferson, of all people. For that reason alone it was not a poorly picked battle.

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