Lederman, Robert v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2002 Decided May 31, 2002

Nos. 01-5157 & 01-5158

Robert Lederman,
Appellant

v.

United States of America, et al.,
Appellees

Appeals from the United States District Court
for the District of Columbia
(No. 99cv03359)

Neal Goldfarb argued the cause for appellant/cross-
appellee. With him on the briefs was Arthur B. Spitzer.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees/cross-appellants. With her on the
briefs were Roscoe C. Howard, Jr., U.S. Attorney, and R.
Craig Lawrence, Assistant U.S. Attorney.

 Before: Edwards and Tatel, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Concurring opinion filed by Senior Circuit Judge Silber-
man.

Tatel, Circuit Judge: In this interlocutory appeal, we
consider a facial First Amendment challenge to a regulation
banning leafleting and other "demonstration activit[ies]" on
the sidewalk at the foot of the House and Senate steps on the
East Front of the United States Capitol. Finding that the
sidewalk is a public forum and that no part of the ban is
narrowly tailored to further a significant governmental pur-
pose, we declare the ban unconstitutional. Because the Capi-
tol Police violated no clearly established legal rules in arrest-
ing Appellant for leafleting in violation of the ban, however,
we conclude that the officers named in Appellant's Bivens
claim are entitled to qualified immunity.

I.

The United States Capitol Grounds extend from Union
Station in the North to Virginia Avenue in the South, and
from Second Street Northeast to Third Streets North- and
Southwest, encompassing the Capitol itself as well as House
and Senate office buildings, a power plant, press areas, and
public open space. See Traffic and Motor Vehicle Regula-
tions for the United States Capitol Grounds ("Capitol
Grounds Regulations") Demonstration Areas Map. This case
involves only the smaller, approximately sixty-acre area of
grass, trees, sidewalks, and a few paved plazas--designed by
Frederick Law Olmstead in the late 1870s--that surrounds
the Capitol. See Architect of the Capitol, History of the U.S.
Capitol Grounds, at http://www.aoc.gov/cc/grounds/g_
history.htm (last visited Apr. 22, 2002). Although barricades
prevent vehicles from entering this central area except
through designated gatehouses, no barriers impede pedestri-

an access. As a result, members of the public use the area
extensively, commuting to work, sightseeing, posing for pic-
tures, jogging, and walking dogs.

Federal law charges the Capitol Police Board, consisting of
the Sergeant at Arms of the United States Senate, the
Sergeant at Arms of the House of Representatives, and the
Architect of the Capitol, with regulating "movement of all
vehicular and other traffic ... within the ... Capitol
Grounds." 40 U.S.C. s 212b(a). Acting on this authority, the
Board promulgated a regulation that restricts "demonstration
activity" near the Capitol, delimiting areas in which such
activity is entirely barred ("no-demonstration zones"), and
areas in which demonstrations are allowed, subject to various
permitting requirements ("demonstration permit zones").
Capitol Grounds Regulations art. XIX, s 158, amend. II, &
Demonstration Areas Map. "[D]emonstration activity"
means:

[P]arading, picketing, leafleting, holding vigils, sit-ins, or
other expressive conduct or speechmaking that conveys a
message supporting or opposing a point of view and has
the intent, effect or propensity to attract a crowd or
onlookers, but does not include merely wearing Tee
shirts, buttons, or other similar articles of apparel that
convey a message.

Id. s 158(a), amend. II. This definition incorporates several
minor revisions made during the course of this litigation.
Because these revisions do not affect our analysis, however,
we refer only to the current version throughout the remain-
der of this opinion.

In early 1997, the Capitol Police applied the demonstration
ban to a lone visitor to the Capitol Grounds, appellant Robert
Lederman, who was distributing leaflets in a "no-
demonstration zone": the sidewalk at the foot of the Senate
steps on the Capitol's East Front. An artist participating in
the annual Arts Advocacy Day, Lederman sought to publicize
a lawsuit he and others had brought regarding artists' rights
to sell their work on public sidewalks in New York City. In
addition to his leaflets, he carried a sign that read "Stop
Arresting Artists." Lederman v. United States, 89 F. Supp.

2d 29, 31 (D.D.C. 2000) ("Lederman I"). Capitol Police
officers approached Lederman and informed him that demon-
strations were not permitted on the East Front sidewalk but
that he could continue to leaflet if he moved to the lawn on
the far side of the paved East Front Plaza--still in the
central part of the Capitol Grounds but approximately 250
feet from the Capitol. Believing that he could not reach his
intended audience from the lawn, Lederman declined to
move. The officers then asked him to wait in another "no-
demonstration zone": the identical sidewalk area at the foot
of the House steps. While Lederman waited there, he re-
sumed leafleting, and, after repeated warnings, appellees
Lieutenant Loughery and Officer McQuay arrested him.

Lederman was charged in D.C. Superior Court with violat-
ing the Capitol Police Board's demonstration ban. Finding
the ban "unconstitutional on its face and as applied to [Leder-
man's] conduct," the Hearing Commissioner entered an un-
published judgment of acquittal. Id. at 31-32. Lederman
then filed this suit in the United States District Court for the
District of Columbia, challenging the constitutionality of the
demonstration ban and seeking compensatory damages for
his arrest from various parties, including the Federal Govern-
ment (under the Federal Tort Claims Act, 28 U.S.C. s 2674),
the District of Columbia (under 42 U.S.C. s 1983), and Lieu-
tenant Loughery and Officer McQuay (under Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971)). To support his standing to bring a
facial challenge to the entire ban, Lederman stated that he
"wishe[d] to come to Washington in the future, on subsequent
Arts Advocacy Days and on other occasions, to engage in
constitutionally-protected demonstration activity in the no-
demonstration zone--including, but not necessarily limited to,
leafleting and holding signs." First Am. Compl. p 36; see
also Lederman Decl. p 17.

The parties filed cross-motions for summary judgment, and
the district court issued a preliminary opinion declaring fa-
cially unconstitutional and permanently enjoining enforce-
ment of the portion of the ban that prohibits "other expres-
sive conduct or speechmaking that conveys a message ...

and has the intent, effect or propensity to attract a crowd or
onlookers." Lederman v. United States, 131 F. Supp. 2d 46,
53-55 (D.D.C. 2001) ("Lederman II") (internal quotation
marks and citation omitted). In so ruling, the court made
clear that its order pertained only to the East Front sidewalk
where Lederman was arrested, not to the paved East Front
Plaza nor to the remainder of the "no-demonstration zone"
surrounding the Capitol. Id. at 50-51. The court also de-
clined to address the constitutionality of the part of the ban
that proscribes parading, picketing, leafleting, holding vigils,
and sit-ins. See id. at 49, 53-54 (focusing analysis on ban on
"other expressive conduct or speechmaking that conveys a
message ... "). Turning to Lederman's Bivens claim against
Lieutenant Loughery and Officer McQuay, the district court
held that under "clearly established" First Amendment law in
the District of Columbia, expressive conduct on the Capitol
Grounds is protected unless it is "more disruptive or substan-
tial than [conduct] normally engaged in by tourists." Id. at
57. Although the court believed there was "a material,
factual dispute as to whether [the officers] reasonably applied
[this 'tourist standard'] when they arrested [Lederman]," id.,
it nevertheless concluded that because the Government failed
to prove the officers "acted reasonably or in compliance with
the ... standard," they could not invoke qualified immunity
as a defense to the Bivens claim, id. at 60.

All parties now appeal. Lederman challenges the district
court's failure to extend its ruling to the similar demonstra-
tion ban in "no-demonstration zones" other than the East
Front sidewalk, as well as its refusal to invalidate the entire
ban. The Government defends the ban's constitutionality and
challenges the district court's qualified immunity determina-
tion. Considering these issues de novo, see, e.g., Sturdza v.
United Arab Emirates, 281 F.3d 1287, 1293 (2002) (noting
standard of review on summary judgment), we do not limit
our analysis--as did the district court--to the portion of the
ban that proscribes "expressive conduct or speechmaking that
conveys a message ... and has the intent, effect or propensi-
ty to attract a crowd or onlookers." Capitol Grounds Regula-

tions art. XIX, s 158(a), amend. II. Given Lederman's arrest
for leafleting and his intent to return to the Capitol Grounds
to engage in other expressive activity on the East Front
sidewalk, see supra p. 4, he has standing to challenge the
entire regulation because he has established a "distinct and
palpable" threat of future "direct injury"--arrest. Meese v.
Keene, 481 U.S. 465, 472 (1987) (internal quotation marks and
citation omitted).

II.

As the district court rightly observed, the "degree of First
Amendment scrutiny accorded to governmental decisions lim-
iting speech on public property depends on whether the
property in question is a traditional public forum, a govern-
ment-designated public forum, or a non-public forum." Led-
erman I, 89 F. Supp. 2d at 35. To determine the constitu-
tionality of the challenged demonstration ban, therefore, we
must decide whether the East Front sidewalk is a public
forum. Lederman urges that we also consider the public
forum status of "no-demonstration zones" other than the
sidewalk where he was arrested, but we decline to do so on
the record before us.

In deciding how to classify the East Front sidewalk, we
have little maneuvering room, as courts have long recognized
that the Capitol Grounds as a whole meet the definition of a
traditional public forum: They have traditionally been open to
the public, and their intended use is consistent with public
expression. In Jeannette Rankin Brigade v. Chief of Capitol
Police, a three-judge panel of the United States District
Court for the District of Columbia, striking down a statute
that forbade " 'parad[ing], stand[ing], or mov[ing] in proces-
sions or assemblages' " around the Capitol, concluded that the
Grounds are "an area to which access cannot be denied
broadly or absolutely." 342 F. Supp. 575, 583-84 (D.D.C.
1972) (three-judge panel) (quoting 40 U.S.C. s 193g). The
Supreme Court summarily affirmed, making Jeannette Ran-
kin Brigade binding precedent. 409 U.S. 972 (1972). Later,
in Community for Creative Non-Violence v. Kerrigan
("CCNV"), we observed that "[t]here is no doubt that the

Capitol Grounds are a public forum." 865 F.2d 382, 383, 387
(1989) (upholding as "a reasonable time, place or manner
restriction" a regulation limiting the length of time during
which demonstration "[p]rops and [e]quipment" may remain
on the Grounds). Clearly, therefore, the "Grounds (excluding
such places as the Senate and House floors, committee rooms,
etc.) have traditionally been open to the public," and "the
primary purpose for which the Capitol was designed--legis-
lating"--is entirely consistent "with the existence of all pa-
rades, assemblages, or processions which may take place on
the grounds." Jeannette Rankin Brigade, 342 F. Supp. at
584. Indeed, in Jeannette Rankin Brigade, the district court
observed that "the fundamental function of a legislature in a
democratic society assumes accessibility to [public] opinion."
Id.

Despite this controlling case law, the Government insists
the sidewalk is a nonpublic forum because it is " 'some special
type of enclave.' " Appellees' Br. at 20 (quoting United
States v. Grace, 461 U.S. 171, 180 (1983)). In making this
argument, the Government relies on the differences between
this case and Grace, in which the Supreme Court considered
the constitutionality of a statute that prohibited " 'display [of]
any flag, banner, or device designed or adapted to bring into
public notice any party organization, or movement' in the
United States Supreme Court building or on its grounds."
461 U.S. at 172-73 (alteration in original) (quoting 40 U.S.C.
s 13k (1949)). The Court limited its consideration of the
constitutional issues to the area where Grace and her fellow
demonstrators had attempted to exercise their First Amend-
ment speech rights--the "public sidewalks surrounding the
Court building." Id. at 175. Observing that "[s]idewalks ...
are among those areas of public property that traditionally
have been held open to the public for expressive activities,"
id. at 179, the Court concluded that the sidewalks surround-
ing the Court building were no exception. Writing for the
majority, Justice White elaborated:

The sidewalks comprising the outer boundaries of the
Court grounds are indistinguishable from any other side-
walks in Washington, D.C..... There is no separation,

 no fence, and no indication whatever to persons stepping
from the street to the curb and sidewalks ... that they
have entered some special type of enclave.... "Con-
gress ... may not by its own ipse dixit destroy the
'public forum' status of streets and parks which have
historically been public forums...."

Id. at 180-81 (quoting United States Postal Serv. v. Green-
burgh Civic Ass'ns, 453 U.S. 114, 133 (1981) (alteration in
original)). Distinguishing Grace, the Government contends
that the East Front sidewalk "is significantly different" from
the sidewalks around the Court because the former "abuts
the Capitol Building, is well within the Capitol Grounds, and
does not run parallel to any city street." Appellees' Br. at
19-20. Unlike in Grace, however, where the Supreme Court
expressly declined to consider whether the Court building
and the remainder of its grounds are a public forum, in this
case the entire Capitol Grounds are a public forum. As a
result, the Government cannot prevail by establishing that
the East Front sidewalk "is well within" those Grounds.
Rather, to convince us the sidewalk is not a public forum, the
Government must establish that the sidewalk differs from the
remainder of the public Grounds in ways that make it unique-
ly "nonpublic."

Perhaps recognizing this requirement, the Government
next argues that "[i]t is entirely possible ... to have property
within areas constituting a traditional public forum be consid-
ered a nonpublic forum." Id. at 22. As evidence that the
East Front sidewalk warrants such an exemption, the Gov-
ernment asserts: "[t]he sidewalk ... has never been available
to the public for expressive activity," id. at 20; Congress
Members' use of the sidewalk for "quick and unimpeded
access to the House and Senate floors" is "not consistent with
public debate and assembly," id. at 22-23; and finally, the
sidewalk's function as a security perimeter around the Capitol
is equally incompatible with public use, id. at 23-24. We are
unpersuaded. To begin with, the sidewalk has never been
available for public expression primarily because, for almost a
century, such expression was prohibited anywhere on the
Capitol Grounds by the very statute declared unconstitutional

in Jeannette Rankin Brigade. 342 F. Supp. at 587-88. If
"time, place, or manner restrictions can[not] bootstrap them-
selves into validity by their mere existence, even if pro-
longed," Henderson v. Lujan, 964 F.2d 1179, 1183 (D.C. Cir.
1992) (emphasis added), then unconstitutional restrictions cer-
tainly cannot, by their mere existence, bootstrap subsequent
restrictions into validity.

The Government's arguments regarding the limited uses of
the East Front sidewalk are equally unconvincing. True, we
have recognized that an area's "specialized use[s] may out-
weigh the attributes that would otherwise mark [it] as [a]
public forum[ ]," but the Government has failed to meet its
"burden ... to show that the [sidewalk's] use [is] overwhelm-
ingly specialized." Id. at 1182. Even assuming, as did the
district court, that the sidewalk "is used primarily by people
coming to and from the Capitol building," Lederman II, 131
F. Supp. 2d at 51, we do not think that use sufficiently
"specialized" to warrant distinguishing the sidewalk from the
remainder of the Grounds for purposes of the public forum
analysis. If people entering and leaving the Capitol can avoid
running headlong into tourists, joggers, dogs, and strollers--
which the Government apparently concedes, as it has not
closed the sidewalk to such activities--then we assume they
are also capable of circumnavigating the occasional protester.
That "clusters of individual demonstrators could ... impede
access to the Capitol," Appellees' Br. at 23, is immaterial:
Although such concerns may provide a basis for reasonable
restrictions on the duration or size of a sidewalk demonstra-
tion, they cannot justify classifying the area as a nonpublic
forum. We likewise reject the proposition that demonstra-
tors of any stripe pose a greater security risk to the Capitol
building and its occupants than do pedestrians, who may
come and go anonymously, travel in groups of any size, carry
any number of bags and boxes, and linger as long as they
please. Again, the Government could address its concern--
the presence of "groups too large to surveil individually,"
carrying "unscreened personal containers and belongings,"
id.--through reasonable time, place, or manner restrictions
that, for example, limit the size of group demonstrations or
the number of individual demonstrators.

 Finally, United States v. Kokinda, 497 U.S. 720 (1990),
which the Government cites for the proposition that all side-
walks are not necessarily public forums, does not control this
case. For one thing, although a plurality of the Kokinda
Court upheld the constitutionality of a U.S. Postal Service
regulation prohibiting individuals from "soliciting alms and
contributions" on the sidewalk leading from the Bowie, Mary-
land Post Office to the post office parking lot, id. at 722-23,
only four Justices agreed with the Government that the
sidewalk in question was a nonpublic forum, id. at 730.
Moreover, analyzing the public forum issue for the Chief
Justice and Justices White and Scalia, Justice O'Connor
focused on the fact that the sidewalk "le[d] only from the
parking area to the front door of the post office" and "was
constructed solely to assist postal patrons to negotiate the
space between the parking lot and the front door of the post
office, not to facilitate the daily commerce and life of the
neighborhood or city." Id. at 727-28. In contrast, the side-
walk at issue here wraps around the Capitol's East Front
almost without interruption, providing pedestrian access to
the entire front of the building in addition to the doors,
thereby facilitating tourist access to the Capitol--a center-
piece of our democracy.

In short, although the East Front sidewalk borders no
public streets, it is "continually open, often uncongested, and
constitutes not only a necessary conduit in the daily affairs of
[the city's] citizens, but also a place where people may enjoy
the open air or the company of friends and neighbors,"
Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452
U.S. 640, 651 (1981), and a place from which tourists may
view and photograph the Capitol. Under these circum-
stances, we agree with the district court that, like the rest of
the Capitol Grounds, the sidewalk is a traditional public
forum.

III.

Because the East Front sidewalk is a public forum, "the
government's ability to permissibly restrict expressive con-

duct [there] is very limited: [It] may enforce reasonable time,
place, and manner regulations as long as the restrictions 'are
content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative chan-
nels of communication.' " Grace, 461 U.S. at 177 (quoting
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37, 45 (1983)). Lederman principally argues that the ban (1)
is not narrowly tailored to controlling traffic and promoting
security around the Capitol, and (2) fails to leave open ample
alternative channels of communication. Because we agree
with the former, we do not address the latter.

We begin with the principles that guide our narrow tailor-
ing analysis. First, we "closely scrutinize" challenged speech
restrictions "to determine if [they] indeed promote[ ] the
Government's purposes in more than a speculative way."
CCNV, 865 F.2d at 390. Second, per se bans on expressive
conduct are inherently suspect. See Grace, 461 U.S. at 182
(questioning the need for a "total ban" on carrying flags and
banners). Third, while the Government "must be afforded a
reasonable measure of discretion in determining how best to
promote" its identified interests, the Constitution does not
tolerate "regulations that, while serving their purported aims,
prohibit a wide range of activities that do not interfere with
the Government's objectives." CCNV, 865 F.2d at 390.
Fourth, "[t]he fact that a substantially less restrictive regula-
tion [would] be equally effective in promoting the same ends
may be relevant" to the constitutional analysis. Id.

The first principle presents little difficulty in this case. We
need not "speculat[e]" at all to assume that the demonstration
ban discourages some people from coming to the East Front
sidewalk to express themselves, thereby reducing pedestrian
traffic and decreasing risks to the Capitol and its occupants.
Thus, the Board could reasonably have concluded that the
ban would serve those interests.

The remaining principles, however, reveal the ban's pro-
found flaws. To begin with, it imposes precisely the sort of
"total" restriction on certain types of speech that the Su-
preme Court "question[ed]" in Grace. 461 U.S. at 182. Even

if we read the ban narrowly--assuming that the sole qualifier
(that the activity in question must convey a message and have
the "intent, effect or propensity" to attract more than one
onlooker) modifies the entire list of proscribed activities, from
"parading" to "speechmaking"--that qualifier is of no prac-
tical significance: Demonstration activity always conveys a
message (that is, after all, its purpose), and it has the
"propensity" to attract more than one onlooker whenever it is
loud or obvious enough to be heard or noticed by more than
one passerby. As the district court observed, "[i]t is hard to
conceive of much expression that a reasonable officer would
not find to be conveying a message[,] ... [and] an officer
reasonably could determine that any expressive conduct
meeting th[is] first definition, with the possible exception of
private conversations, has the ... 'propensity' to attract ...
onlookers." Lederman II, 131 F. Supp. 2d at 54. The regula-
tion's exemption of expressive tee-shirts and buttons is equal-
ly insignificant. As in Grace, the problem here is that certain
types of speech (parading, picketing, leafleting, vigils, sit-ins,
and speechmaking) are, even under a narrow reading, almost
entirely prohibited. That the ban permits other types of
speech may establish that it "leave[s] open ample alternative
channels of communication," Grace, 461 U.S. at 177 (internal
quotation marks and citation omitted), but that fact hardly
demonstrates that the ban is narrowly tailored to its objec-
tives.

The ban's absolute nature might be less troubling if--in
accordance with the third principle--all listed demonstration
activities could reasonably be expected to interfere with the
stated objectives of traffic control and safety. Some banned
activities, however, cannot possibly pose that risk. For exam-
ple, a single leafleteer standing on the East Front sidewalk
will no more likely block traffic or threaten security than will
photographers, star-struck tourists, and landscape painters
complete with easels, but the Board has made no effort to
keep any of these latter individuals away from the Capitol.
"Freedom of expression ... would rest on a soft foundation
indeed if government could distinguish" between demonstra-
tors and pedestrians on "a wholesale and categorical basis,"

without providing evidence that demonstrators pose a greater
risk to identified government interests than do pedestrians.
Police Dep't of Chicago v. Mosley, 408 U.S. 92, 101 (1972).
We likewise doubt that "a group of congressional staffers"
standing "outside the Capitol arguing [loudly] about the latest
... bill" would impede traffic flow or raise security concerns,
yet "assuming that the ban was applied literally and even-
handedly," such a group "would presumably be risking cita-
tion or arrest for engaging in 'expressive conduct.' " Leder-
man I, 89 F. Supp. 2d at 41.

Perhaps the most troubling aspect of the Board's virtually
per se ban on expressive activity on the East Front sidewalk
is the ready availability of "substantially less restrictive"
alternatives that would "equally effective[ly]" promote safety
and orderly traffic flow. CCNV, 865 F.2d at 390. For
example, the Board could rely on existing laws that bar
visitors to the Capitol Grounds from "utter[ing] loud, threat-
ening, or abusive language, ... engag[ing] in any disorderly
or disruptive conduct," or "obstruct[ing] ... or ...
imped[ing] passage through or within" the Grounds. 40
U.S.C. s 193f(b)(4)-(5). Alternatively, the Board could re-
quire permits for demonstrations on the sidewalk, limit the
duration of such demonstrations, restrict the number of indi-
viduals who may demonstrate simultaneously, require that
demonstrators present bags and other personal possessions to
police officers for screening, or prohibit activities likely to
attract large crowds. We emphasize that in listing these
alternatives, we do not intend to provide the Board with
specific suggestions for future regulations--indeed, we are
uncertain that every identified alternative would survive con-
stitutional scrutiny, though some surely would. Rather, our
list shows only that the Government could achieve its intend-
ed objectives while also permitting some demonstrations on
the East Front sidewalk.

Moreover, because our hypothetical alternatives, like the
existing ban, aim at future speech, we find unconvincing the
Government's warning that striking down the current ban will
somehow preclude the Police Board from "enact[ing] regula-
tions to address conduct reasonably expected to occur." Ap-

pellees' Br. at 28. We well recognize that under established
First Amendment doctrine, the Government may issue rea-
sonable, prospective, time, place, and manner regulations that
restrict expressive activity on the East Front sidewalk. We
hold only that, as currently written, the demonstration ban
imposes "a serious loss to speech ... for a disproportionately
small governmental gain," White House Vigil for the ERA
Comm. v. Clark, 746 F.2d 1518, 1544 (D.C. Cir. 1984) (Wald,
J., concurring in the judgment in part and dissenting in part
on other grounds), thus violating the narrow tailoring require-
ment.

IV.

This brings us to the issue of Lieutenant Loughery's and
Officer McQuay's qualified immunity for arresting Lederman.
"Qualified immunity shields officials from liability for dam-
ages so long as their actions were objectively reasonable, as
measured in light of the legal rules that were 'clearly estab-
lished' at the time of their actions." Kalka v. Hawk, 215 F.3d
90, 94 (D.C. Cir. 2000) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818-19 (1982)). In analyzing this issue, we first
determine whether "the facts alleged show the officer's con-
duct violated a constitutional right." Saucier v. Katz, 533
U.S. 194, 201 (2001). "[I]f a violation could be made out on a
favorable view of the parties' submissions, the next ... step is
to ask whether the right was clearly established." Id. If
existing law at the time of the violation "did not put the
officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropri-
ate." Id. at 202.

By finding the Police Board's demonstration ban unconsti-
tutional, we have resolved the "threshold question," id. at 201:
Lederman's arrest violated his constitutional rights. For
three reasons, however, we do not believe that existing law at
the time of the arrest "put [Lieutenant Loughery and Officer
McQuay] on notice that [their] conduct would be clearly
unlawful." Id. at 202. First, while Jeannette Rankin Bri-
gade and CCNV establish that the Capitol Grounds as a whole

are a public forum, neither case discusses individual areas of
the Grounds, and we agree with the Government that some
areas within a large public forum may be nonpublic if their
"use" is "specialized." Henderson, 964 F.2d at 1182. Indeed,
the three-judge panel in Jeannette Rankin Brigade suggest-
ed that its First Amendment analysis might have produced a
different result if the expressive conduct at issue had oc-
curred "near or in the immediate vicinity of the Capitol
itself." 342 F. Supp. at 584 (internal quotation marks omit-
ted). While we now explicitly hold that the First Amendment
analysis does not, in fact, differ on the East Front sidewalk,
we nevertheless think a reasonable police officer could have
believed that the sidewalk's proximity to the Capitol altered
the First Amendment balance with respect to demonstration
activities there.

Second, we agree with the Government that because nar-
row tailoring is "not an exact science," a reasonable officer
should not be expected to perform that analysis prior to
arresting an individual for violating an ostensibly lawful time,
place, and manner restriction governing expressive activity in
a public forum. Appellees' Br. at 52. As the Supreme Court
stated in a different context prior to Harlow:

The enactment of a law forecloses speculation by enforce-
ment officers concerning its constitutionality--with the
possible exception of a law so grossly and flagrantly
unconstitutional that any person of reasonable prudence
would be bound to see its flaws. Society would be ill-
served if its police officers took it upon themselves to
determine which laws are and which are not constitution-
ally entitled to enforcement.

Michigan v. DeFillippo, 443 U.S. 31, 38 (1979); see also
Grossman v. Portland, 33 F.3d 1200, 1210 (9th Cir. 1994)
("[A]n officer who reasonably relies on the legislature's deter-
mination that a statute is constitutional should be shielded
from personal liability."). Although the demonstration ban is
a regulation not a statute, we think a similar standard applies
here. While we find the ban's sheer breadth astonishing, we

recognize that the Police Board made some attempt at tailor-
ing--it exempted expressive tee-shirts and buttons and in-
cluded the phrases regarding "convey[ing] a message" and
"ha[ving] the intent, effect or propensity to attract a crowd or
onlookers." Capitol Grounds Regulations art. XIX, s 158(a),
amend. II. Although those qualifiers cannot begin to satisfy
the narrow tailoring requirement, see supra pp. 11-12, we
think their inclusion in the ban keeps it from being "so
grossly and flagrantly unconstitutional," DeFillippo, 443 U.S.
at 38, that the officers should have recognized its flaws.

Third, as the Government points out, the East Front
sidewalk "has never been available to the public for expres-
sive activity." Appellees' Br. at 20; see also supra pp. 8-9.
Although the longstanding policy of prohibiting demonstra-
tions around the Capitol cannot "bootstrap" the current ban
"into validity," Henderson, 964 F.2d at 1183, we do think that
policy could have misled a reasonable police officer as to the
ban's constitutionality.

Finally, we must consider the significance of the District of
Columbia Court of Appeals' "tourist standard," on which the
district court relied. See supra p. 5. To begin with, contrary
to Lederman's assertion, we have never "held" that the
tourist standard "governs" the constitutionality "of arrests for
demonstration activity on the Capitol Grounds." Appellant's
Br. at 38. Rather, in Dellums v. Powell, the lone case in
which we cited the standard, we were applying a District of
Columbia law that District courts had "definitively construed"
to incorporate the standard. 566 F.2d 167, 177 (D.C. Cir.
1977) (citing United States v. Nicholson, Nos. 20210-69A et
al. (D.C.Ct. of Gen.Sess. June 19, 1969), aff'd, 263 A.2d 56
(D.C.App. 1970)). Of course, that we have never incorporated
the tourist standard into our First Amendment jurisprudence
does not resolve the qualified immunity issue because, in
evaluating what constitutes "clearly established statutory or
constitutional rights of which a reasonable person would have
known," Harlow, 457 U.S. at 818, we must look not just to
federal case law, but also to the law of the highest court in
the state in which the case arose, see Doe v. Delie, 257 F.3d
309, 321 n.10 (3d Cir. 2001) (reviewing federal appellate

decisions regarding what constitutes "clearly established"
law).

Even if the tourist standard represents "clearly estab-
lished" law, however, two factors convince us that the stan-
dard does not bar qualified immunity for the officers in this
case. First, although the District of Columbia Court of
Appeals has stated that it "impose[s] the 'tourist standard' to
save content-neutral statutes regulating the time, place, and
manner of expression from unconstitutionality in their appli-
cation," Berg v. United States, 631 A.2d 394, 398 (D.C. 1993),
we have found no case in which the court has applied the
standard to any federal law or regulation. Even assuming
that the appeals court would apply the standard to the
demonstration ban and other federal laws if given the oppor-
tunity, we see no basis for requiring reasonable police officers
to foresee that possibility. Second, we are unpersuaded that
Lederman's leafleting "clearly" met the standard. Because
District of Columbia courts have never applied the standard
to a case involving leafleting, we think a reasonable police
officer could conclude that leafleting, which requires some
minimal personal interaction between the leafleteer and his
audience, is "more disruptive" to passing pedestrians, includ-
ing Members of Congress and their staff, than the conduct of
an average tourist.

Overall, therefore, whether we review only the officers'
conduct in relying on the unconstitutional demonstration ban,
or consider also their alleged violation of the District of
Columbia tourist standard, we cannot conclude that their
arrest of Lederman violated his "clearly established" rights.
The officers are therefore entitled to qualified immunity.

V.

We declare the entire demonstration ban unconstitutional,
find that Lieutenant Loughery and Officer McQuay are enti-
tled to qualified immunity for their roles in Lederman's
arrest, and remand for entry of an injunction barring enforce-
ment of the ban and for further proceedings consistent with
this opinion.

So ordered.

 Silberman, Senior Circuit Judge, concurring: I concur in
the court's opinion. We are certainly bound by Jeannette
Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575
(D.D.C. 1972) (three judge panel), aff'd, 409 U.S. 972 (1972).
However, I think it is distinctly possible that the later Su-
preme Court case, United States v. Grace, 461 U.S. 171
(1983), particularly the Court's implicit rejection of Justice
Marshall's position that the whole of the Supreme Court's
grounds are a traditional public forum, betokens a more
sympathetic reception to the government's arguments. To be
sure, Jeannette Rankin Brigade was summarily affirmed, but
the Court rarely considers itself bound by the reasoning of its
prior opinions--which is why I have referred to it as a "non-
court court," see United States v. Moore, 110 F.3d 99, 102
(D.C. Cir. 1997) (Silberman, J., dissenting from denial of
rehearing en banc)--let alone a summary affirmance. (Of
course, the Court's reluctance to offend Congress would not
be irrelevant.)

In light of my doubts as to how this case will be received by
the Supreme Court if certiorari is granted, I join my col-
leagues' treatment of the Bivens claim. However, I am
inclined to think that under applicable immunity law each of
the police officer's conduct should be judged as if he were the
lawyer for the Capitol Police.