Comment: Griffen v. Griffiss Air Force Base: Qualified Immunity and the Commander's Liability for Open Houses on Military Bases

• Author: by Lieutenant Commander E. Roy Hawkens
• Pages: 05

An "open house" on B military base is an activity through which a base commander promotes favorable relations between his military base and the local community. During the open house. the general public is invited to visit the base to gain a better understanding of military life generally and the base mission specifically. Air Force base commanders are encouraged, by express regulations. to hold open houses at least annually to "show the mission, equipment, facilities, people, skills, and professionalism required to operate the Air Force."'

An important constitutional question arises, however, for cam

manders who hold open houses: namely. what is the first amendment consequence of inviting the general public onto a military base to view the equipment. facilities, and professional. ism of ow nation's military personnel. The commander who neglects to consider this question, or who an~wers it incorrectly, may well find that he is a defendant in a Bivensa suit in which a plaintiff seeks to hold him personally liable for substantial compensatory and punitive damages for alleged constitutional

*Urnred States Naval Reserve. Commander Hawkena 10 an attorney 81 the United States Department of Justice. C i d Division. Appellate Staff. and is also an active r88ervi(it wiih COMSUBLANT Detachment 10s. Washingtan. D.C He served an active duty with the United Stares Navy from 1915 ta 1980 and. after completing law school. clerked for Judge Edward A T- of the Umted States Court of Appeals for the Dietrid of Columbia Circuit J D , Marshall.U'ythe Sehwl of Law, College of William & Mary, 1983: B.S., United StsteS S e d Academy. 1916. Author of The E / f d of Shaffer Y Heitner on tho JuAsdicnonoi Standard in Ex Perf. Diuorces. 18 Fam. L. 9. 311 11984): Varginiu's Domeilc Rsinliona Long-Am Legidanon. Doer Its Reach Eiceed Its Dun Pmeoss OmapP, 24 R m & Mary L Rev 229 119831. Member of the bars of the Commonwealth of Vv-a and the United State8 Courts of Appeals for the Dislrict of Columbia Circuir, the Third Cawit. the Fourth Circuit. the Fifth Ciremt. the Sixth Circuit. the Seventh Cirnrit. and the Ninth Clreuil. The viewe expresbed herein me those of the author and do not nece89anly reflect those of the Justice Department. the Department of Defense. or any other government ~ p n c y

Dep't of Air Faree, Reg. So. 190-1, Fmblle Affairs-hbhc Affairs Poheies and Roeeduros. para. 4-29 116 Feb 19821 [heremafter AFR 190.11. The reievant part of fhs ramlation IS set out $",+a note 6.

'Bivenr V. Six Unknom Named Agents of the Federal Bureau of Xarcoties, 403 U.S 388 119711 lholding that government employees may be sued m their persond capsuties for constitutional violations pursuant to an imphed CBYB~ of aerim aramg from the Canslilulianl

violations. Indeed, this is the situation in which an Air Force commander currently finds himself following an open house in 1984 at Griffiss Air Force Base in Rome, Sew Y ~ r k . ~

Although

the commander at Griffiss Air Force Base actually considered beforehand the possible legal consequences of the open house and even solicited the advice of Air Force attorneys and a local United States attorney's office to ensure no constitutional infractions would occur, he nevertheless is being sued by civilian plaintiffs who claim they suffered first amendment injuries when they were prevented from engaging in expressive political activity on the base during the open house.

This article will review the factual and judicial history of the stiILpending Griffiss Air Force Base case, and it will then examine whether the district court correctly concluded that the military defendants were not entitled to summary judgment based an their qualified immunity. This article concludes that the court erred in failing to grant defendants qualified immunity.

As a result of the district court's decision in Griffiss Air Force Base, military commanders now face an incredible dilemma. They may comply with military regulations and hold periodic open houses, but only at the cost of surrendering their historic and constitutionally permissible authority to prohibit ambase political expression they perceive as threats to security or inconsistent with the military mission. Or, they may preserve their authority by disregarding military regulations and never holding open houses.' This is an unacceptable predicament in which to place our military officials, and it cannot be gainsaid that the necessary steps speedily should be taken to eradicate this judicially created Hobson's ch0ice.s

1. GRIFFEN v. GRIFFISS AIR FORCE BASE: FACTUAL BACKGROUND AND

JUDICIAL PROCEEDINGS A. FACTUAL BACKGROUND

In 1984. the commander of Griffiss Air Farce Base, in eomidianee with Air Force remlations that urge commanders "to

'Gnffen Y Grifiiis Av Force Base So. 86-CY-365 IN D.N Y.I.

'Ci Flower V. Lmted Stares. 401 US 197 201 115721 IRehnqvirt J dissenting1 'The term "Hobson Q choice 13 derived from the llrseflee af Thomas Habsan 11544.16311 of Cambridge. England, who rented horses and gave his C Y S L O ~ B ~ S only m e ehom Lhal of fhs horse nearest the stable door Rebater Q Biographical Dictionary 716 115721

1987) OPEN HOUSES

hold at least one open house each year,"i ordered that a portion of his normally closed base be opened to the public on September 8, 1984.' Because Griffiss Air Force Base is a large, active military installation that houses substantial government property (including military aircraft and live ordinance) and employs over seven thousand personnel, the commander ordered that appropri. ate steps be taken to ensure proper security. The commander was especially concerned with security because Griffiss Air Force Base recently had experienced several disruptive protests. In one ease, demonstrators had damaged between 850,000 and $125.000 of government property. In another, demonstrators had blocked access to and exit from the base by standing, sitting, or lying across roadways that entered the base.8

In an effort to deter similar disruptive incidents during the open house. the commander decided, based on advice he received from the legal staff at his base and the United States Attorney's office in Syracuse. New York, to prohibit all political activities or statements an Griffiss Air Force Base during the open house.8 Outside organizations that wanted to display exhibits during the open house submitted their plans for prior approval by Griffiss

sAFR 190-1pmwdes in reiwant parr

Open homes Show $he rmiaon. equipment. facPcies. people. skPs and pmf88~i0nslrm riqulred to operate the Air Force Open housesshould not be lor convey the image of1 a fau. carnival. CYCYS, civhan BY show. or &splay of earnereid products. They should highlight the bare nuamon and As Force hie. Opening dhng hslla, dormitories. mavltenanee shops. classrooms. flighr mmuiafors. and other unelss~i. lied faePtie8 for pubhe inspection LQ encouraged when pambie. Commanders may hold open homes when considered m the bed interest of their community relafionr programs Each commander 10 urged to haid 81 least one open house each year. The annual open house is B major acriwty The [PvbLc Affaus Officer] must work closely with the [open house] project affxer to ensure pubhc aware ness md attendance BL the open house The [pubhe Affaul Officer] will provide the comprehensive guidehe far the project offieera use in planning Lhe open houseAFR 190.1. para. 4-29. see dio id paras 11 through 1-28

Gnffm Aa Force Baas normally is B closed baae-that 19, the general pubhe normally does not have access to rhe base The base perimeter is aneioied by B fence. and armed guards at each gsce check the idintifieation of each person entering the bass A ~ignac each gate wami that entry is unlawful without rhe base commander's permirrion Srr Griffen Y Griffiss Air Force Base, No 85-CV-385 (S D S Y I [hereinafter Gnfiiii reeardl laffidavit of the stalf judge advocate dated Apt 29. 19861 Citations are Lo the exhibits filed m support of Defendanvr Motion to Dismiia and PlontifPs Maoons for Summary Judgment and for Prehminary Inpncuon

7d'Id, nee d a o id at 28.29 laffidavit of a3aistanc staff wdge sdwcars dated Mar 26 19881

Air Force Base officials. The plans were examined to ensure they were consistent with the goals of the open house and were devoid of political content.

At the open house. no defense contractors had displays, and nocivilian commercial organizations had displays. Indeed, with oneexception. only organizations affiliated with Griffiss Air Force Base were allowed to have di~p1ays.l~

The exception was the

Confederate Air Force, an aviation organization which routinely is permitted to show historical aviation displays during open houses." In this instance. the Confederate Air Force permitted the public to take self-guided tours in a refurbished B.29 aircraft.

On the morning of the open house, a member of the legal staff at Griffiss Air Force Base examined the exhibits to ensure that, in conformance with the commander's directive, nothing was displayed that amounted to a political Ststement.'z Additionally, to ensure that the general public would be aware that their presence on the base was subject to certain restraints on their expressive activity, some 16,000 letters of welcome were distrib. uted that explicitly "prohibit[ed] any political activity and any other action detrimental to good order and discipline."'s

l,Id. laffidavit of the staff judge ad\ocarel. Exampler of the organmations that were permimed to have displays included the Boy Seouti. B Black Heritage organirsnon. B model uplane club. the C ~ i d

Xu Patrol. and reemteri from rhe other military branches See id !Ssp 7, 1981 L S J Y ~ of the .Mahauk Flyrr. an unofficial newma~e~at Griffiss Aa Force Base 81 101"Id laffidavi if srsff judge advocate1#'Id laffidsvir af assistant sfsff judge sdvmsfel Examples of the special events that were provided OT permitted b) the Air Force included B Weapons Sysrems T r a m Tour. an Army...