Temporary Restraining Order

Temporary Restraining Order

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

TEMPORARY RESTRAINING ORDER

The Court has before it in the above-entitled cause a motion by the Plaintiffs asking that the Court reconsider its denial of their Application for a Temporary Restraining Order.

This matter originated on December 22, 1994, when three long-term demonstrators in Lafayette Park [1] filed an Application for a Temporary Restraining Order.

Plaintiffs alleged that agents of the Park Police had engaged in a pattern and practice of arbitrarily threatening, intimidating, and harassing individuals, and particularly individuals engaged in First Amendment exercise, in the Park, under color of various valid Park regulations, and that the shooting death of Marcelino Corniel was a proximate result of this alleged pattern and practice of regulatory enforcement. Complaint, page 1.

Plaintiffs sought an Order to restrain Defendants from assigning officers O'Neill, Keness and the unidentified officer who actually fired the bullet that killed Marcelino to duty in Lafayette Park.

[1 This Circuit has unambiguously identified Lafayette Park as a "unique public forum." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984).]

1

On January 6, 1995, pursuant to the Court's Order of December 22, 1994, plaintiffs appeared before this Court. [2] To expedite matters William Thomas spoke on behalf of all plaintiffs, who
appeared pro se.[3]

Thomas told the Court that he had "five or six" witnesses prepared to describe a pattern and practice by certain Park Police officers which allegedly deprived the plaintiffs and others of First Amendment rights, and who would testify that Officer O'Neill had been kicking and prodding Marcelino Corniel with a nightstick shortly before Marcelino was shot.

Assistant U. S. Attorney Sally Rider [4] appeared on behalf of the United States. AUSA Rider stated that she was not prepared for a TRO hearing, and had no witnesses present. [5]

[2 Plaintiffs initially expressed some dismay that the Court set a TRO hearing for fifteen days after the Application for emergency relief had been filed. Under the extraordinary circumstances of the holiday season, however, the Court felt that the delay would be justified by providing all parties ample time to prepare witnesses and evidence, thus ensuring that the TRO hearing would be more than a simple repeat of the issues fully briefed in written pleadings submitted by both parties. Having experienced the unique luxury of reviewing written pleading from both parties at the TRO hearing, the Court does not suggest amending the F.R.C.P. to require that both parties commit their positions to paper prior to a hearing for emergency relief.]

[3 Mark Goldstone, who is licensed to practice before this Court, acted as a friend of the Court and advisor to plaintiffs. ]

[4 Accompanying AUSA Rider at Defendants' table was Richard Robbins, Assistant Solicitor for the Department of Fish and Wildlife, DOI. Mr. Robbins happens to be a named defendant in the Complaint. Accompanying Mr. Robbins and AUSA Rider was Randy Meyers, who is also an Assistant Solicitor for the Department of Fish and Wildlife, DOI.]

[5 Thomas stated that the only defendant or government witness necessary for his presentation was Mr. Robbins, supra, footnote 3.]

2

The Court refused repeated pleas to allow plaintiffs' witnesses to testify on the facts at issue. Instead the Court decided to accept AUSA Rider's contested version of the facts, and rendition of the complaint. [6]

In retrospect the Court believes it was a mistake to have credited AUSA Rider's representations, particularly without affording plaintiffs the opportunity to put on witnesses or introduce evidence. Because late wisdom is preferable to early error, having carefully reviewed the current status of this matter, the Court now concludes that it was incorrect to deny Plaintiffs' plea for emergency relief.

The matters discussed at the TRO hearing pivoted around two issues, factual and legal.

Due to the fact that the Court heard no testimony, beyond plaintiffs' pleadings (and the documents contained therein), AUSA Rider's representations, and newspaper, radio and T.V. accounts, [7] the Court has little intrajudicial information on the matters at bar, so the factual issues are limited.

Understandably, in light of recent incidents, a plane crash on the south

[6 There was absolutely no indication that AUSA Rider had any personal knowledge of, or experience with any incident alleged in plaintiffs' pleading. Thomas did state that "many representations made by Ms. Rider are completely inaccurate," and suggested that it would be entirely inappropriate for the Court to accept AUSA Rider's uncorroborated, hotly contested "testimony" above plaintiffs' sworn declarations, and documentary evidence (including, among other relevant documents, a letter, together with a certified mail receipt, from Thomas to Mr. Robbins, which documented Thomas' claims against defendant O'Neill [see, Complaint, paras. 6-9 and Exhibit 1], and National Park Service Demonstration Permits, permitting the same "two flags" which officers O'Neill and Keness had repeatedly used as a pretext for threatening to arrest plaintiffs.]

[7 In a Motion to Recuse, filed December 27, 1994, plaintiffs complained that this case was "being tried in the press." Memo, page 3. Being only human, this Court now realizes that it momentarily lost a degree of perspective with regard to its CRUCIALLY IMPORTANT responsibility of acting as an objective FACT-FINDER in service to human civilization. As indicated by this Order, the Court has regained the proper perspective.]

3

lawn of the White House, and (not counting the killing of Mr. Corniel by Defendants) two shootings [8] since October, Defendants and the Court share heightened concerns about the security of the President, the First Family and the White House.

[8 From all available information the second shooting, which may have been done from as far as a mile away, could have been the act any one of millions of possible culprits acting with an infinite number of possible motives.]

Upon more serious consideration of both parties' representations, however, the Court now concludes that, in light of the few facts available, it becomes apparent that the killing of Mr. Corneil was not related to presidential security concerns, and that the presence of Mr. Corneil's killers in Lafayette Park is entirely superfluous to Defendants' duty and/or ability to provide security for the White House and its' occupants.