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Control of the Mall’s Union Square changes hands

Reprinted from Washington Post

Union Square, the photogenic parcel of the Mall that the National Park Service had envisioned as a First Amendment demonstration space, is quietly being transferred to the jurisdiction of the Architect of the Capitol.

Control of the square, which contains the Grant Memorial and Capitol Reflecting Pool just west of the Capitol, is being switched through a provision in a new omnibus spending bill, largely out of security concerns.

Park Service officials, who historians say have had jurisdiction over the 11-acre square since the 1930s, were surprised by the action.

The service had long-range plans for the square to be turned into a multi-use area for demonstrations, gatherings and entertainment. And the Trust for the National Mall is in the midst of a competition for the redesign of the square and other parts of the Mall.

The spending bill states: “To the extent that the Director of the National Park Service has jurisdiction and control over any portion of the area . . . and any monument or other facility which is located within such area, such jurisdiction and control is hereby transferred to the Architect of the Capitol.”

Although definitions of what constitutes the Mall vary, the provision, in a sense, moves its easternmost boundary west — from First Street to Third Street.

The Architect of the Capitol, which oversees the infrastructure of the Capitol complex, said in a statement it was ready “to assume responsibility of the care and maintenance of Union Square . . . as well as present an impressive and proper transition to Capitol Hill from the National Mall.”

“We really don’t know what prompted it,” David Barna, the Park Service’s chief spokesman, said of the change. “It caught us by surprise, but we will work to transfer this to them as seamlessly as possible.”

But an attorney who specializes in First Amendment matters said she found the handover “very, very disturbing” and said the move could limit demonstrations there.

“I find it extremely troubling,” said Mara Verheyden-Hilliard, of the Washington-based Partnership for Civil Justice, which advocates for protest groups. “This is an area that is acknowledged as a key area for demonstration activities.

“The Park Service rules and obligations on First Amendment activities have been forged by 40 years of very intense litigation,” she said.

The transfer, she said, would move law enforcement authority in the square to the Capitol Police.

“The Capitol Police . . . permitting system, I would have to say in my own experience . . . is perhaps among the most arbitrary and restrictive,” Verheyden-Hilliard said. “If they’re going to be expanding their jurisdiction out into areas that have been used historically by people, they are inviting litigation.”

Historians noted that the square was for many years prior to the 1930s part of the Capitol complex. And the Senate sergeant at arms, who supported the provision, said the square has long needed to be brought under the Capitol’s security umbrella.

The move came “largely out of security-driven issues,” said Terrance W. Gainer, the Senate’s chief law enforcement officer. Gainer has also been chief of the Capitol Police and a top official with D.C. police.

“I do not think the area has benefitted from security enhancements that have gone on, not only on [Capitol] Hill but throughout Washington D.C.,” he said. “And those are needed.”

He lamented the past need to use cement blocks and large vehicles as security barriers in the area. “We can enhance security in a much more aesthetic way,” he said. “And it completes, in my opinion, the grounds of the hill.”

Gainer added that the area is one where, previously, three police jurisdictions intersected — U.S. Park Police, Capitol Police and the D.C. police.

Asked if Capitol authorities had been worried about demonstrations there, Gainer said:

“Our concern isn’t that there would be demonstrations there, because I think we were pretty darn good at handling First Amendment demonstration issues on the hill.

“Maybe this is a transfer without huge distinction,” he said. “I think our millions of visitors probably think less about who the landlord is of a particular piece, and they just want access and beauty and some of the amenities that need to come along with it.”

He added that he was “empathetic to the Architect of the Capitol.”

“When you get a new piece of property, it requires more work to upkeep it,” he said. “I hope eventually funds will be available to make it look nicer.”

Indeed, the Park Service planned to replace the rundown reflecting pool with a different water feature and to refurbish and repair the weathered Grant Memorial.

There was no timetable for either project.

Caroline L. Cunningham, president of the nonprofit Trust for the National Mall, which raises funds for Mall maintenance and improvements, said the trust’s design competition for Union Square would go forward. “Our goal is to design a beautiful and useful and sustainable space,” she said.