Motion for Temporary Restraining Order
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No.________________
Plaintiffs pro se, | Judge___________________
v. | APPLICATION FOR AN EXPEDITED
| TEMPORARY RESTRAINING ORDER,
The United States, et. al. |
Defendants. | IN FORMA PAUPERIS
PLAINTIFFS' MOTION FOR A
TEMPORARY RESTRAINING ORDER
Pursuant to Federal Rule of Civil Procedure 65(b), and
incorporating by reference paragraphs 17-28 of the Complaint for
Declaratory and Injunctive Relief, filed this date, plaintiff
hereby moves this Court to issue a Temporary Restraining Order.
No regulations prohibit the exercise of First Amendment
activities in the closed section of Pennsylvania Avenue. In this
case the D.C.M.R. "failure to obey a police officer" regulation
has been used to "vest() unbridled authority in the hands of the
polic as to who they arrest or not arrest, or who they exclude or
don't exclude. Decisions are made on a case by case basis, rather
than according to a general rule" smf "members of the public have
no way of knowing whether they might be in violation of the law,
or how they may avoid violation, except by prior experience....
'This does not provide for government by clearly defined laws,
but for government by moment to moment decisions of a policeman,
which is clearly unconstitutional'." United States v. Nicholson,
87 WDLR 1213, 1216; affr'md 263 A.2d 56 D.C. Appellate (1970).
"The critical question in balancing things is whether the
manner of the expression is compatable with the normal activity
of the place at that time....." Graynard v. City of Rockford,
408 U.S. 104, 116 (1971)
"The mere fact that speech is accompanied by conduct does
not mean that speech could be surpressed under the guise of
prohibiting the conduct.' Food Employees v. Logan Plaza, 391
U.S. 308, 323.
Clearly there has been a suspension of traffic regulations
in the closed section of Pennsylvania Avenue, if police were
enforcing regular traffic regulations they wouldn't be allowing
the activity that is going on with roller skaters, and tour
guides educating their audiences in the middle of the street.
Since tour guides are permitted to use the street to speak
with impunity, and for monetary gain, educating their audiences
about the number of bathrooms and elevators in the White House,
certainly plaintiff must be allowed to use the same street to
address the public on issues of broad public concern.
THE REQUIREMENTS FOR TEMPORARY RELIEF
It is clear that the plaintiff has met the familiar
standards for temporary relief set forth in Virginia Petroleum
Jobbers Ass'n v. PPC, 259 F.2d 921 (DC Cir. 1958) and WMATA v.
Holiday Tours, 559 F.2d 841 (DC Cir. (1977). First, there is a
likelihood that plaintiff will prevail on the merits of the
Second, if relief is not granted, plaintiffs will be
irreparably injured in their efforts to exercise their freedom of
expression free from continuing random, capricious, unjustifiable
regulatory re-interpretation and enforcement. Suppression of
First Amendment exercise has been held to constitute "irreparable
injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), and to
constitute "substantial ... damages." City of Watseka v.
Illinois Public Action Council, 796 F.2d 1559, Summarily Affirmed
by the Supreme Court, slip opinion 86-631, January 27, 1987.
Third, the issuance of a Temporary Restraining Order will
not harm the defendants. It will simply maintain the status quo
by continuing to allow individuals the opportunity to target
visiting dignitaries with Constitutionally-protected messages, a
situation which has produced no substantial ill effects to the
Government since at least as early as June 3, 1981.
THE NECESSITY FOR TEMPORARY RELIEF
The importance of free and open public spaces is well
At issue here is the baseline status quo. As President
Clinton stated in announcing the new security measures, this is
"the first time since the beginning of the Republic that this
street has been closed."
"The right to speak freely and to promote diversity of ideas
and programs is ... one of the chief distinctions that sets us
apart from totalitarian regimes." Terminiello v. Chicago, 337
U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745
"From time immemorial" parks have been recognized as "public
forums." Hague v. C.I.O, 307 U.S. 496 (1939). In this circuit
Lafayette Park has repeatedly been recognized as a "unique public
forum." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984); United
States v. Sunrise, 707 f. Supp. 295 (1988).
(1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry,
485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482
U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v.
C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at
411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v.
O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551
(1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v.
Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980);
Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318
U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).
NECESSITY FOR INJUNCTIVE RELIEF
"The extraordinary nature of these charges makes this an
easy case. Whatever authority the Government may have to
interfere with a group engaged in unlawful activity, and however
it may be permitted to impede or deter rights of lawful
association as a by-product of legitimate Government actions, it
is never permissible to impede or deter lawful civil
rights/political organization, expression or protest with no
other direct purpose and no other immediate objective than to
counter the influence of the target [expressor]." Hobson v.
Wilson 737 F.2d 1, 27 emphasis in original, [substituting], see
also, Dombrowski v. Pfister, 380 U.S. 479, 482.
PRAYER FOR RELIEF
WHEREFORE, plaintiff moves the Court to temporarily restrain
defendants from arresting plaintiff for engaging in lawful First
Amendment activities under color of D.C.M.R. "Failure to Obey a
Police Officer," or such other or additional relief as the Court
might deem appropriate
A proposed Order is attached.
Respectfully submitted, May 30, 1995,
William Thomas, Plaintiff pro se
P.O. Box 27217
Washington, D.C. 20038
CERTIFICATE OF SERVICE
On May 30, 1995, PRIOR TO FILING WITH THE CLERK OF THIS
COURT, I caused copies of the accompanying Request for a
Temporary Restraining Order to be served upon the office of the
United States Attorney for the District of Columbia at 555 4th
Street NW, Washington, D.C., and the Corporation Council for the
District of Columbia.