UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT LEDERMAN, )
)
Plaintiff, )
)
v. )
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
Civil Action No. 99-3359 (RWR/AK)
Plaintiff’s Memorandum
in Opposition to the District’s
Motion to for Reconsideration of Decision
Denying Motion to Dismiss the Second Amended Complaint
and
in Support of Plaintiff’s Cross-Motion for Reconsideration
The Court should deny the District of Columbia’s motion for reconsideration, and
in doing so it should reconsider its analysis of the question whether the Capitol Police
Board regulation at issue here constitutes D.C. law for purposes of § 1983.
Although we agree with the District that the Court was mistaken in stating that
District Council has affirmatively adopted the statute authorizing the promulgation of the
Capitol Police Board regulations, the Court was correct in its ultimate conclusion that the
regulation at issue constitutes D.C. law. As is discussed below, the regulation should be
treated as D.C. law because it applies exclusively to the District, because the regulations
were enacted pursuant to a delegation of power by Congress in its role as the District’s
local legislature, and because Congress intended that the regulations be treated as local
law. The Court’s contrary conclusion on this point is, we submit, mistaken.
Although the District is also correct in pointing out that the Court did not address
its probable-cause argument, that argument is unfounded and should be rejected on the
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merits. Contrary to what the District contends, the existence of probable cause is irrelevant
where, as in this case, the plaintiff’s claim is that he was prosecuted under a statute that is
unconstitutional on its face.
Argument
A. The Capitol Police Board regulation constitutes D.C. law for
purposes of § 1983.
1. Liability under § 1983 is limited to cases where the defendant acted “under color
of any statute, ordinance, regulation, custom, or usage of any State or Territory or the
District of Columbia[.]” For purposes of § 1983, “any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute of the District of
Columbia.”
In opposing the D.C. defendants’ motion to dismiss, we argued that the Capitol
Police Board regulation should be regarded as D.C. law for purposes of § 1983. Although
the Court did not conclusively reject our argument, its decision suggests that the Court is
leaning in that direction. The decision relies principally mainly on a textual analysis. The
Court said that although the Capitol grounds lie exclusively within the District of Colum-
bia the statute delegating rulemaking authority over traffic on the Capitol Grounds could
not be regarded as a statute “applicable exclusively to the District of Columbia” because
interpreting the statute that way would render the statute’s last sentence (providing that a
congressional enactment applying exclusively to the District is deemed a D.C. statute)
superfluous: “Using Lederman’s logic, any law applied exclusively to the District would
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also apply ‘exclusively’ to the United States, because the District sits wholly within the
United States. This conclusion renders the last sentence of § 1983 meaningless.”1
The Court’s premise is correct, but it does not support the Court’s conclusion. We
agree that a statute applicable only to the District could be regarded as applying only to the
United States in the sense that such a statute would not apply anywhere in the world other
than the United States. But that fact is irrelevant to the question before the Court. The fact
that a statute applies to exclusively to the United States does not mean that it applies
anywhere in the United States other than the District. Thus, even though the statute at issue
here applies exclusively to the United States, the fact remains that within the United States
it applies exclusively to the District. Conversely, a statute that applied, for example, to
national parks located in the District or in any of the 50 states would apply exclusively to
the United States, but would not apply exclusively to the District.
What the last sentence of § 1983 does, then, is to separate out one category of
statutes from the broader set of statutes that apply only to the United States and treat the
former differently from the latter. This being the case, our interpretation does not in any
way render the final sentence a nullity.
In addition to its mistaken textual analysis, the Court said in a footnote, “Laws that
have been held to apply exclusively to the District are concerned with the welfare and
rights of District residents District-wide, not merely the regulation of traffic on federal
property.”2 But although that statement may be an accurate description of the laws that
1. Mem. Op. and Order of April 13, 2007, at 5 (D.E. 154).
2. Id. at 6 n.2.
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happened to be at issue in the cases the Court cited, nothing in those cases suggests that a
statute must apply everywhere in the District in order for it to be regarded as applying
exclusively to the District. That issue was neither presented nor considered nor decided in
any of those cases, and the logic of those cases is not in any way inconsistent with our
argument. Thus, the result in the cases cited by the Court did not turn on whether the
statutes were, in the Court’s words, “concerned with the welfare and rights of District
residents District-wide[.]”
In short, neither of the points discussed in the Court’s decision supports the
conclusion that § 1983 is inapplicable here.
2. There are powerful reasons in addition to those set out above for treating the
Capitol Police Board regulations as D.C. law for purposes of § 1983. We have presented
those arguments in our prior submissions, but for the Court’s convenience we will
reproduce some of the most important points here.
To begin with, the Capitol’s location in the District is not, as the District puts it, a
mere “geographical happenstance” having no relevance to the regulations’ status as D.C.
law. The presence of the Capitol in the District is no coincidence, and the Capitol is not
just some random piece of federal property. The District is designated by statute as the seat
of government;3 indeed, it exists as a political entity for the specific purpose of being the
seat of government. And the seat of government is by definition the place where the
legislature meets. Indeed, by law Congress must be based here,4 So regulations concerning
3. 4 U.S.C. § 71.
4. See 4 U.S.C. § 72 (“All offices attached to the seat of government shall be exercised in the
District of Columbia, and not elsewhere, except as expressly provided by law.”).
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the Capitol grounds fall squarely within Congress’s power under the Constitution to
“exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia.5
The fact that the Capitol grounds are federal property does not mean that any
regulations applying there must constitute federal rather than D.C. law. The Capitol and the
Capitol grounds are not like a foreign embassy—within the District’s borders but beyond
the reach of its laws. On the contrary, ordinary D.C. law applies on the Capitol grounds.
The D.C. Code provides that “[t]he provisions of the several laws and regulations of the
District of Columbia for the protection of public or private property and the preservation of
peace and order are extended to all public buildings and public grounds belonging to the
United States within the District of Columbia.”6 Thus, crimes occurring in the Capitol or
on the Capitol grounds are frequently prosecuted under D.C. law and tried in Superior
Court.7 Significantly, these crimes include violations of D.C. law relating to demonstration
activity in the Capitol and on the Capitol grounds.8 And torts committed on the Capitol
5. U.S. Const., Art. I, § 8, cl. 17. See Capitol Traction Co. v. Hof, 174 U.S. 1, 5 (1899).
6. D.C. Code § 5-133.05 (formerly § 4-116).
7. E.g., Bieder v. United States, 707 A.2d 781 (D.C. 1998) (possession of unlicensed pistol in
violation of D.C. Code § 22-3204(a)); Madison v. United States, 512 A.2d 279 (D.C. 1986)
(possession of cocaine in violation of D.C. Code § 33-541(d)); see generally McEachin v.
United States, 432 A.2d 1212, 1213–16 (D.C. 1981) (criminal provisions of D.C. Code apply
on federal property in the District of Columbia and may be prosecuted in Superior Court).
8. E.g., Hasty v. United States, 669 A.2d 127 (D.C. 1994) (demonstrating in the Capitol building
in violation of D.C. Code § 9-112(b)(7)); Berg v. United States, 631 A.2d 394 (D.C. 1993)
(demonstrating in the Capitol building in violation of D.C. Code § 9-112(b)(7) and obstructing
passage in the Capitol building in violation of D.C. Code § 9-112(b)(5)).
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grounds are governed by D.C. law.9 So there is nothing unusual about the notion that a law
applicable to the Capitol grounds can constitute local D.C. law.
Nor is the District’s position bolstered by the fact that the Police Board regulations
protect national as well as local interests. This is clear from the D.C. Circuit’s en banc
decision in United States v. Cohen,10 where the court considered a congressionally enacted
provision under which criminal defendants tried in the District of Columbia who are
acquitted of federal crimes by reason of insanity are automatically committed to a mental
institution.11 The court held this to be a valid exercise of Congress’s authority to legislate
for the District even though the statute applies to those acquitted of federal crimes and
even though it serves the national interest in protecting federal officials from harm:
[T]here would be special reason to exercise [Congress’s authority to
legislate for the general welfare of the District] with regard to confinement
of the insane prone to criminal acts within the Nation’s Capitol. Recent
events demonstrate, if any demonstration is needed, that the attraction of
the mentally disturbed to politically prominent figures is a strong one. See
United States v. Hinckley, 525 F. Supp. 1342 (D.D.C. 1981). The same
concern for the welfare of its officials that induces the United States to
assign protective personnel to particular persons and to particular buildings
within the District also reasonably reflects itself in special steps to control
the criminally insane in this location.12
Cohen therefore demolishes the argument that the Police Board regulations cannot be
regarded as local D.C. law because they are enacted for the benefit of Congress.
9. See Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977) (applying D.C. law to false-arrest
claims arising on Capitol grounds); Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859–61 (D.C.
1999) (applying D.C. law to claims of invasion of privacy, fraud, and intentional infliction of
emotional distress arising from events on Capitol grounds).
10. 733 F.2d 128 (D.C. Cir. 1984).
11. D.C. Code § 24-301 (1981).
12. 733 F.2d at 138; see id.. at 132 n.10, 138–39.
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Furthermore, there are many indications that Congress intended the Police Board
regulations to be treated as local D.C. law. Congress has provided that violations of the
regulations be prosecuted in Superior Court, by the Corporation Counsel (now the Attorney
General).13 As the Supreme Court has explained, the Superior Court was created to
perform “functions essentially similar to those of the local courts found in the 50 States of
the Union with responsibility for trying and deciding those distinctively local controversies
that arise under local law[.]”14
What is more, many of the statutory provisions regarding the Capitol and the
Capitol grounds appear not only in the United States Code but also in the D.C. Code.15
13. 2 U.S.C. § 1969(a) (formerly 40 U.S.C. § 212b(a)); D.C. Code § 10-503.25 (formerly § 9-
127).
14. Palmore v. United States, 411 U.S. 389, 409 (1973).
15. For example:
D.C. Code § 10-503.01 (formerly § 9-105) (authority of Sergeants at Arms of Senate and
House regarding preserving the peace in the Capitol, protecting the Capitol from
defacement, and protecting public property in the Capitol);
D.C. Code § 10-503.02 (formerly § 9-107) (duty of Capitol Police to prevent use of Capitol
grounds as playgrounds);
D.C. Code § 10-503.11 (formerly § 9-106) (boundaries of Capitol grounds; jurisdiction of
Architect of the Capitol);
D.C. Code § 10-503.12 (formerly § 9-108) (travel on Capitol grounds restricted to roads
and walkways);
D.C. Code § 10-503.13 (formerly § 9-109) (obstruction of roads on Capitol grounds
prohibited);
D.C. Code § 10-503.14 (formerly § 9-110) (sale of goods, advertising, and begging on
Capitol grounds prohibited);
D.C. Code § 10-503.15 (formerly § 9-111) (removal or injury of property on Capitol
grounds prohibited);
D.C. Code § 10-503.16 (formerly § 9-112) (prohibition of various conduct in the Capitol
buildings or on the Capitol grounds, including carrying or discharging firearms,
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Among those provisions is the one granting the Capitol Police Board the rulemaking
authority under which the no-demonstration regulation was promulgated.16 And that
provision states that in promulgating regulations, the Board may obtain the assistance of
the D.C. government.17 Finally, the D.C. Code permits officers of the Metropolitan Police
Department to be detailed and in some cases transferred to the Capitol Police.18
To support their argument that the Police Board regulations do not constitute local
D.C. law, the District has cited Thomas v. Barry, where the D.C. Circuit held that a
provision of the D.C. Home Rule Act transferring certain positions from the Department of
Labor to the District government was not a law “applicable exclusively to the District of
Columbia,” because it altered the structure of a federal agency.19 But Thomas must be read
narrowly in light of the D.C. Circuit’s subsequent en banc decision in Cohen. For example,
Cohen rejected the notion (relied on by the District) that Congress’s power as our local
legislature is limited to acting in ways in which state governments would be free to act.20
entering the House or Senate chamber without authority, engaging in disruptive
conduct with intent to impede congressional business, impeding passage, and engaging
in acts of violence);
D.C. Code § 10-503.18 (formerly § 9-114) (defining penalties for unlawful acts in the
Capitol buildings or on the Capitol grounds);
D.C. Code § 10-503.19 (formerly § 9-115) (defining responsibility and arrest powers of
Capitol Police).
16. D.C. Code § 10-503.25 (formerly § 9-127).
17. D.C. Code § 10-503.25(c).
18. D.C. Code §§ 10-505.01, 10-505.02 (formerly §§ 9-116, 9-117).
19. 729 F.2d 1469 (D.C. Cir. 1984).
20. 733 F.2d at 132 n.10.
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In any event, Thomas is easily distinguishable from this case. The court in Thomas
held that the statute at issue there was not exclusively applicable to the District of
Columbia because it affected the internal structure and functioning of a federal agency. But
the Police Board regulations have no such impact. They are directed at the general public,
not at congressional officials as such, and they do not purport to regulate the way in which
Congress carries out its legislative business. For example, they have nothing to do with
matters such as voting procedures, committee assignments, ethical rules, or legislative
staff. So the analogy to Thomas is invalid.
The District has also argued that the regulations do not constitute local D.C. law
because they “are not enacted for the general welfare of District of Columbia citizens, but
rather for the specific benefit of the United States Congress.” But Cohen establishes that
this is a false dichotomy: measures protecting federal officials and federal institutions can
promote the general welfare of the District.21 Indeed, a law benefiting Congress by
definition benefits the District’s local legislature. Just as a state or municipal legislature has
the power to enact laws to protect and promote its own functioning, Congress possesses
such power in its capacity as the local government of the District.
Finally, the D.C. defendants argue that the Police Board regulations are not tailored
to meet specifically local needs. But this argument rests on the assumption that a law
serving federal interests cannot simultaneously serve local needs, and that assumption is
invalid. As our discussion of Cohen shows, the two categories are not mutually exclusive.
21. Cohen, 733 F.2d at 138.
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3. Even if the Court disagrees with what we have said so far, it should deny the
District’s motion for reconsideration. The Court held that even if the regulation constitutes
federal law, the District can be held liable under Monell for the decision to prosecute
Lederman under the regulation.22 The District’s motion ignores that holding entirely.
B. The existence of probable cause is irrelevant to Lederman’s claim
for being prosecuted under a regulation that violated the First
Amendment on its face and as applied to Lederman.
Lederman=s claim against the District is based on the fact that it prosecuted him for
violating a regulation that was unconstitutional on its face and as applied. The. District
argues that this claim is barred because there was probable cause to believe that Lederman
had violated the Police Board regulation. The argument is unfounded.
1. The shortest and simplest answer to the District’s argument is that it conflicts
with the D.C. Circuit=s decision in this case and with the Superior Court=s decision in the
prior criminal case against Lederman. Neither of those courts suggested that Lederman=s
First Amendment argument (as opposed to his damages claim against the arresting officers)
was affected in any way by the existence of probable cause.
In fact, the Superior Court held that the regulation was unconstitutional on its face
and as applied even though it found beyond a reasonable doubt that Lederman had violated
the no-demonstration regulation.23 Since the District of Columbia was a party to the
22. Mem. Op. & Order of April 13, 2007, at 9–10. (D.E. 154).
23. Lederman Decl. Ex. A at 19B20 (D.E. 5).
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Superior Court action, the Superior Court=s decision precludes the District from relitigating
the issue here.24
2. Even if the District were writing on a clean slate, their argument would still fail.
When dealing with a direct restraint on speech—i.e., a law that expressly prohibits
speech—the question of probable cause is irrelevant. As far as we are aware, no case has
ever suggested that the issue of probable cause plays any part in the analysis of a direct
restraint. (As we will show, none of the District’s cases involved a direct restraint.) More
importantly, the notion that First Amendment protection turns on the presence or absence
of probable cause stands the First Amendment on its head.
When considering a law that expressly prohibits speech (such as the Capitol Police
Board regulation), the focus under the First Amendment is not on the strength of the
evidence that the law has been violated; that is the province of the Fourth Amendment and
the due-process clause of the Fifth Amendment. Rather, the focus is on whether the
conduct the law prohibits is constitutionally protected. If it is, the law is unconstitutional
even if there is no doubt that it was violated.
This is clear from the fact that the First Amendment provides a basis for over-
turning convictions under statutes that are unconstitutional on their face or as applied in the
case before the court.25 The District’s argument cannot be squared with these cases,
24. See Restatement (2d) of Judgments ' 85(3) & comment g (judgment against the government in
a criminal prosecution has preclusive effect to the extent permitted by the ordinary rules of
preclusion).
25. E.g., Texas v. Johnson, 491 U.S. 397 (1989) (overturning conviction for flag-burning);
Brandenburg v. Ohio, 395 U.S. 444 (1969) (overturning conviction for violation of criminal-
syndicalism statute); Garrison v. Louisiana, 379 U.S. 64 (1964) (overturning conviction for
criminal libel).
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because in each of them the challenger=s constitutional rights were held to have been
violated even though there was not merely probable cause to believe that he had violated
the statute, but proof beyond a reasonable doubt.
The District’s argument also conflicts with the rules governing suits seeking to
enjoin the enforcement of a statute on the grounds that it is unconstitutional. In such an
action the plaintiff has standing only if the law is likely to be enforced against him,26 and
that in turn depends on whether his conduct (or his planned conduct) would violate the
law.27 If there is no probable cause to believe that the conduct would violate the law, he has
no standing. Under the District’s theory, therefore, the very facts necessary to prove
standing would bar the plaintiff=s claim on the merits. Conversely, the only person who
would have a claim on the merits would be someone whose conduct was clearly outside
the scope of the statute, but such a person would have no standing.
That is not the only absurdity that would result if the District’s theory were
adopted. Suppose there was a statute that made it a crime to criticize the President and that
someone was charged with violating the statute by carrying a sign saying, ABush Lied
About Iraq.@ According to the District, that person would have no First Amendment claim
because there was probable cause to support the prosecution. But a First Amendment
challenge could be brought by someone who was arrested for holding a sign that said,
26. See, e.g., American Library Ass=n v. Barr, 956 F.2d 1178, 1193 (D.C. Cir. 1992) (standing to
raise pre-enforcement challenge depends on how likely it is that the statute will be enforced
against the challenger).
27. Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 554 (9th Cir. 2003) (plaintiff
lacked standing to challenge provision that did not apply to it); People for the Ethical
Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002) (organization lacked
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AGod Bless President Bush.@ Thus, the ability to challenge a statute that was plainly
unconstitutional on its face would turn on the viewpoint expressed by the speaker—a result
that would itself violate the First Amendment.28
Thus, the defendants are quite mistaken in arguing that Athe probable cause
requirement for a Fourth Amendment seizure is a sufficient safeguard of First Amendment
interests @ in the present context.29 The case that they cite for this proposition—Zurcher v.
Stanford Daily30—has nothing to do with this case. The Court in Zurcher held only that the
First Amendment does not independently limit the government=s ability to search a
newspaper=s offices for evidence of a crime. That holding is irrelevant here because it was
based on the conclusion that a search that complies with the Fourth Amendment will not
restrain the newspaper=s ability to publish or to communicate its views.31
Significantly, the Supreme Court has held that when a search or seizure does
operate as a restraint on speech (for example, if all copies of a publication are seized), the
ordinary Fourth Amendment standard of probable cause does not adequately protect First
Amendment interests.32 Expressive materials may be not lawfully be seized as constituting
standing to challenge provision that did not apply to its planned conduct); Faustin v. City &
County of Denver, 268 F.3d 942, 948 (10th Cir. 2001).
28. See R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).
29. D.C. Defs.= Mtn. for Recon. 3.
30. 436 U.S. 547 (1978).
31. See 436 U.S. at 565B67.
32. E.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63B64, 65B66 (1989):
[W]hile a single copy of a book or film may be seized and retained for
evidentiary purposes based on a finding of probable cause, the publication
may not be taken out of circulation completely until there has been a
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prohibited speech without a finding, based on an adversarial hearing, that they are not
constitutionally protected.33 Even if there was probable cause to believe that Lederman=s
conduct was unprotected, there certainly was no judicial finding to that effect. So to the
extent the law governing searches and seizures is relevant here at all, it provides the
District no support.
3. The District’s argument is based primarily on cases holding that the existence of
probable cause will defeat a claim for retaliatory prosecution.34 But those cases do not
support the District’s position.
Those cases state a narrow rule limited to claims for retaliatory prosecution, not a
broad principle that applies to First Amendment cases generally, and certainly not a rule
that governs direct restraints on speech. In the District’s cases, as in most retaliatory-
prosecution cases, the plaintiff was charged with a statute that was constitutional on its face
(usually a statute that is not directed at speech and that does not otherwise impose a burden
determination of obscenity after an adversary hearing. [&] Thus, while the
general rule under the Fourth Amendment is that any and all contraband,
instrumentalities, and evidence of crimes may be seized on probable cause
. . ., it is otherwise when materials presumptively protected by the First
Amendment is involved. . . . [&] [P]robable cause to believe that there are
valid grounds for seizure is insufficient to interrupt the sale of
presumptively protected books and films.
See also Heller v. New York, 413 U.S. 483, 492-93 (1973).
33. See, e.g., Marcus v. Search Warrant, 367 U.S. 717 (1961). Cf. Blount v. Rizzi, 400 U.S. 410,
420B21 (1971) (applying a similar rule to orders banning materials from the mail).
34. Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695 (2006); Wood v. Kesler, 323 F.3d 873, 883
(11th Cir. 2003); Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002); Keenan v. Tejada, 290
F.3d 252, 260 (5th Cir. 2002); Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992).
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on speech), and was prosecuted for conduct that is not constitutionally protected.35 The
prosecution was claimed to be unconstitutional because it was brought for an improper
purpose: to retaliate against the plaintiff for asserting his constitutional rights. But
Lederman=s claim here is not that his prosecution was improperly motivated, it is that he
was prosecuted under an unconstitutional regulation for engaging in conduct that was
constitutionally protected. As we have shown, the presence or absence of probable cause is
irrelevant in such cases.
The District relies on three additional cases that can be dealt with briefly: Heck v.
Humphrey,36 Michigan v. DeFillipo,37 and Pierson v. Ray.38 None of these decisions is
remotely pertinent here.
In Heck the Supreme Court imposed a special limitation on claims under § 1983 for
damages due to an allegedly unconstitutional conviction or imprisonment, or due to some
other harm such that a finding for the plaintiff would effectively invalidate a conviction or
sentence. In such cases, no claim may be brought under § 1983 unless that the conviction
or sentence has been reversed, expunged, or otherwise invalidated.39 This case does not fall
35. See Hartman, 546 U.S. at —, 126 S. Ct. at 1700 (charges of conspiracy to defraud the United
States, theft, receiving stolen property, mail fraud, and wire fraud in connection with alleged
involvement in kickback scheme and for taking allegedly improper actions relating to the
search for a new Postmaster General, see U.S. v. Recognition Equipment Inc., 725 F. Supp. 587,
587 (D.D.C. 1989) (decision entering judgment of acquittal in underlying criminal case));
Wood, 323 F.3d at 876 (reckless driving); Dahl, 312 F.3d at 1232 (bribing a witness); Keenan,
290 F.3d at 256 (pointing gun at constable); Mazzochi, 959 F.2d at 1175B76 (criminal
harassment by sending threatening communication).
36. 512 U.S. 477 (1994).
37. 443 U.S. 31 (1979)
38. 386 U.S. 547 (1967).
39. 512 U.S. at 486–87.
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into that category because Lederman was never convicted of the charge against him.
Nowhere in Heck did the Court deal with the question whether the existence of probable
cause can defeat a claim for having been prosecuted under a statute that violates the First
Amendment. Moreover, the District’s contention that Heck somehow incorporated all the
elements of the tort of malicious prosecution into the Constitution is nonsense. The Court
held only that in the category of cases the Court was dealing with, it was appropriate to
borrow one element of claim for malicious prosecution: the requirement that the criminal
proceedings against the plaintiff have been resolved in the plaintiff’s favor.40 To the extent
that such a requirement applies here, it has been satisfied.
DeFillipo is equally irrelevant. The Court there upheld a drug conviction that was
based on evidence that had been found during a search incident to an arrest for violation of
a statute that was later held to be unconstitutionally vague. It is distinguishable from this
case for two independent reasons. First, DeFillipo was decided entirely under the Fourth
Amendment, and did not involve a prosecution for conduct that was protected by the First
Amendment. Second, DeFillipo dealt with the validity of arrests, while the claim against
the District involves the validity of a prosecution. That is significant because the Court’s
holding was based on its conclusion that “[s]ociety would be ill-served if its police officers
took it upon themselves to determine which laws are and which are not constitutionally
entitled to enforcement.”41 That concern is not implicated by a suit based on an unlawful
prosecution. Prosecutions are brought by legally trained prosecutors, not by police officers,
40. 512 U.S. at 484–88.
41. 443 U.S. at 38.
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and prosecutors the time for research, reflection, and analysis that is unavailable to police
officers who must decide on the spot whether to make an arrest.
Finally, Pierson involved the personal liability of police officers who are sued for
having made arrests under a statute later held to be unconstitutional.42 We have already
discussed the difference between arrests and prosecutions. And the issue of individual
liability raises considerations that are not raised where, as here, a claim is being asserted
against the municipality rather than an individual municipal employee. As this Court
recognized when it rejected the District’s defense of prosecutorial immunity, “a municipal
corporation does not, by extension, enjoy the benefit of the personal immunities defenses
of its officers and employees.”43
Conclusion
For the reasons above, the Court should deny the District ‘s motion for reconsider-
ation. In addition, the Court should grant Lederman’s cross-motion and reaffirm its
decision denying the District’s motion to dismiss.
Respectfully submitted,
/s/ Neal Goldfarb
Neal Goldfarb, No. 337881
Tighe Patton Armstrong Teasdale PLLC
1747 Pennsylvania Ave., N.W., Suite 300
Washington, D.C. 20006
(202) 454-2826
ngoldfarb@tighepatton.com
Attorney for Plaintiff Robert Lederman
42. 386 U.S. at 555–57.
43. Mem. Op. and Order of April 13, 2007, at 11 (D.E. 154).
Case 1:99-cv-03359-RWR Document 156 Filed 05/11/07 Page 17 of 18
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Of Counsel:
Arthur B. Spitzer
American Civil Liberties Union
Fund of the National Capital Area
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
(202) 457-0800
Case 1:99-cv-03359-RWR Document 156 Filed 05/11/07 Page 18 of 18
