Defendants' Opposition to the TRO

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.             |

UNITED STATES' OPPOSITION TO
PLAINTIFFS' MOTION FOR A
TEMPORARY RESTRAINING ORDER

On January 4th, counsel for the defendants for the first time obtained a copy of the plaintiffs' complaint, accompanying motions, and Motion to Recuse. According to the records of the United States Attorney's Office, none of these papers has been served upon this Office. Likewise, none of the named defendants have been served with the complaint or any other papers. Despite the fact that none of the defendants have been served, the United States files this opposition to the plaintiffs' request for a temporary restraining order.

FACTUAL BACKGROUND

Plaintiffs, three demonstrators who maintain vigils in Lafayette Park, seek an injunction to "ban defendants from arbitrarily enforcing or threatening the enforce" the regulations governing demonstrators in the National Capital Region parks, including Lafayette Park. Complaint, p. 2. Plaintiffs also seek an injunction directing the Park Police as to which officers can and cannot be assigned to Lafayette Park. Id.

In their complaint, plaintiffs assert that two Park Police

1

officers have attempted to enforce the regulations governing demonstrators in Lafayette Park. See 36 C.F.R, 7.96. Plaintiffs assert that these regulations, as they apply to "structures" and "camping" are vague and are subject to arbitrary enforcement, thereby chilling plaintiffs' speech in violation of the First Amendment.[l]


[1 Plaintiff also asserts a claim for false arrest. Such a claim plainly does not support the injunctive relief sought by plaintiffs and will not be discussed here.]

These very regulations have been upheld against numerous challenges -- including challenges by these plaintiffs. See Clark v. CCNV, 468 U.S. 288 (1984) (upholding camping regulation, 36 C.F.R. 7.96(i), as valid time, place and manner restriction); White House Viqil for the ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984) (upholding White House sidewalk sign, parcel and "center zone" regulations); United States v. Thomas, 864 F.2d 188 (D.C. Cir. 1988) (upholding conviction under camping regulation and rejecting constitutional challenge); Thomas v. Lujan, 791 F.Supp. 321 (D.D.C. 1991) (upholding Lafayette Park storage regulation). Indeed, similar claims of conspiracy and deprivation of First Amendment rights brought by these plaintiffs have been rejected more than once. See Huddle v. Reaqan, 1991 U.S. Dist. LEXIS 7070 (D.D.C. 1991) (copy attached); Thomas v. United States, 696 F.Supp. 702 (D.D.C. 1988).


[1 Plaintiff also asserts a claim for false arrest. Such a claim plainly does not support the injunctive relief sought by plaintiffs and will not be discussed here.]

2

ARGUMENT

In applying for a temporary restraining order, plaintiff bears the burden of providing evidence demonstrating:
  1. that he is likely to prevail on the merits;
  2. that he will suffer "immediate [irreparable] harm within the next ten days unless injunctive relief is granted";
  3. that the issuance of an injunction will not substantially harm the other parties; and
  4. that the issuance of the injunction will not be adverse to the public interest.

Optic-Electronic COOP. V. United States, 683 F.Supp. 269, 270 (D. D.C. 1987), (emphasis in original), citing Washinqton Metropolitan Area Transit Commission v. Holidav Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Here, the plaintiffs fall short on each of the four factors.

1. Plaintiffs Have Failed to Demonstrate that
They Are Likely to Succeed on the Merits.

To the extent that the plaintiffs challenge the constitutionality of the regulations governing signs and camping in Lafayette Park, it is plain that their claims will fail. See e.q., Clark v. CCNV, 468 U.S. 288 and White House Visil, 746 F.2d 1518; Huddle v. Reaqan, 1991 U.S. Dist. LEXIS 7070; Thomas v. United States, 696 F.Supp. 702. To the extent that the plaintiffs allege selective or arbitrary enforcement, their allegations fail to demonstrate anything more than that the regulations are being enforced. See Huddle at *29. As Judge Green noted in Huddle, "[e]ven if plaintiffs had pointed to scattered instances of misconduct, it is clear that plaintiffs are not entitled to relief." *26-*27 (footnote omitted). Thus,

3

even accepting plaintiffs' allegations, they are entirely unlikely to prevail on the merits of their claims.

2. Plaintiffs' Have Failed to Demonstrate
Immediate Irreparable Harm.

Although the plaintiffs make sweeping, conclusory allegations that their First Amendment rights are being trampled, they have failed to assert a factual foundation for these assertions. Plaintiffs' factual allegations boil down to claims that, over a period of several months
  1. Park Police officers found that two flags, a large wooden free-standing sign and a cooler might violate the applicable regulations;


  2. demonstrators who Park Police officers believe are violating the camping regulation have been awakened; and


  3. several months ago one plaintiff was charged with disorderly conduct but was not ultimately prosecuted.

These facts simply do not demonstrate the sort of immediate, irreparable harm that would justify the imposition of a temporary restraining order.

3. The Issuance of an Injunction Would
Be Adverse to the Public Interest.

Finally, and most importantly, the issuance of the temporary restraining order sought by plaintiffs would be extremely harmful to the public interest. The regulations governing demonstration activities in Lafayette Park serve both to protect the security of the President and other occupants of the White House, and to preserve and protect the Park itself. The Court is well aware of the rash of incidents that have occurred in the last few months threatening the security of the President, ranging from the crash

4

of a small plane on the White House lawn, to two instances of gunfire at the White House. The public interest certainly requires that the Park Service be able to enforce regulations that have been upheld against constitutional challenge time and again. In the face of the plaintiffs' meager factual allegations, the public interest patently supports the denial of plaintiffs' request for a temporary restraining order.

CONCLUSION

For the reasons stated and upon the authorities cited, the plaintiffs' motion for a temporary restraining order should be denied.

Respectfully submitted,

_________________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney

_________________________________
SALLY M. RIDER, D.C. BAR #436588
Assistant United States Attorney

OF COUNSEL:

RANDOLPH MYERS, Esq.
Office of the Solicitor

5