Alan Gura wants a jury to decide whether a group of dancers at the Jefferson Memorial in 2008 violated the government's prohibition on demonstrations at the monument on the Tidal Basin along the Potomac River.
Gura, a solo practitioner in Alexandria who specializes in civil rights litigation, represents a woman named Mary Oberwetter, who was arrested in 2008 at the memorial following what she and fellow revelers called an “expressive” dance in honor of the “individualist spirit for which Jefferson is known.”
Last year, a federal judge threw out a suit seeking damages stemming from the arrest at the memorial, where demonstrations are banned. Gura is trying to revive the litigation.
Today, he pitched his argument today to a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which is exploring the extent to which the government can prohibit certain activities on public property.
Oberwetter and 17 others, each wearing headphones, danced in place in the inner portion of the monument shortly before midnight on April 12, 2008.
A park police officer stopped the performance and told Oberwetter to stop dancing and leave the memorial. Oberwetter refused, demanding an explanation. When Oberwetter refused, she was arrested on charges that included interfering with an agency function. (A prosecutor said in court today that the charges were ultimately dismissed.)
The U.S. Park Service does not issue permits for demonstrations and special events at, among other spots, the Washington Monument, Vietnam Veterans Memorial and the Lincoln Memorial. In court, Gura said Oberwetter’s dance was not a demonstration.
“The constitution applies fully to the Jefferson Memorial,” Gura told appeals court judges David Tatel, Judith Rogers and Thomas Griffith today.
Rogers tried several times to get an explanation of activity that is allowed in the inner portion of the memorial. An assistant U.S. attorney, Harry Roback, said “casual” use of the space is permitted. He described conversations among friends and family, snapping photos.
Rogers pressed Roback for more on permitted use. She asked whether she can stand for 15 minutes, shifting from one foot to another. “The government takes no position on Judge Rogers dancing,” Roback said, drawing laughter from the court observers.
Rogers, however, was not amused. She said the question was not facetious. Roback said prohibited activity is “extremely fact dependent.” Rogers later said it wasn’t clear whether she—or any visitor—can stand for a prolonged period, swaying from foot to foot.
The judge questioned the government’s interest in prohibiting certain conduct. Roback said there is no “bright line” on what’s permitted. “What is not permissible is what Ms. Oberwetter did,” the prosecutor said.
Roback said the park officer wanted to “restore order” to the memorial. In his argument to the appeals court, Gura said the park police officer had too much discretion to determine what is and is not acceptable use of the memorial space.
Gura questioned whether shaking a fist, displaying a certain finger or turning your back on Jefferson could mark a prohibited “demonstration” that could lead to an arrest.
The appeals court did not immediately rule.