Plaintiff's allegations with respect to the action taken on
May 20, 1995, are also subject to ready dismissal. The street
restrictions affect only general public vehicular traffic and
plaintiff has failed to allege how such action affects him
personally, since he does not allege that he owns or operates a
car. Moreover, as this Court noted at the hearing on plaintiff's
motion for a temporary restraining order, "there is a legitimate
public interest in preserving the safety of the President," and
plaintiff has failed to state a cognizable claim under the
Constitution, the APA or the NEPA. Hearing Transcript, copy
attached as Exhibit A, at 52-53. Rather, consistent with the
Secretary's mandate to protect the President and the White House
Complex from danger, including vehicle-carried bombs, the Secret
[1 Plaintiff also cites to Bivens v. Six Unknown Federal 1
Narcotics Agents, 403 U.S. 388 (1970), and 42 U.S.C. §§ 1983 and
1985(3), although he raises no specific allegations with respect
to these citations.]
[2 On June 5, 1995, plaintiff filed an Amended complaint.
This motion addresses that Complaint.]
3
Service restricted a certain portion of Pennsylvania Avenue, as
well as State Place and a portion of South Executive Avenue, from
public vehicular traffic. These same streets, however, remain open
to authorized vehicular traffic, such as emergency police, medical
and fire vehicles, as well as to pedestrians, bikers, joggers and
others when authorized vehicles are not using the streets. Indeed,
plaintiff is also free to use these streets for any purpose not
prohibited by D.C. statute or regulation, and consistent with the
use of the streets for authorized vehicular use.
Intermittently spaced concrete barriers
were also placed at certain portions of Lafayette Park.", in
order to prohibit vehicular access to the White House perimeter
through the Park. However, Lafayette Park remains completely
unchanged and entirely open to the public, both day and night.
The full panoply of rights and uses of Lafayette Park currently
permitted by National Park Service regulations remain extant and
available to plaintiff and others. More importantly, despite
plaintiff's suspicions to the contrary, there is no present
intent to enclose Lafayette Park or close the Park, in full or
partially, to public access. Rather, the vehicle barriers around
certain perimeter areas of the Park have been specifically
designed to permit pedestrians entry to the Park; the barriers
only serve to prevent intrusion into the Park by vehicles in
order to thwart any attempt to gain proximity to the White House
Complex with a vehicle-carried explosive. Consequently,
pedestrian access to the Park remains
4
as it existed before the street restrictions or intermittent
barriers were put in place.
Finally, as this Court concluded at the hearing, plaintiff's
arrest, while carried out by District of Columbia officials, was
entirely lawful. Exh. A at 52.
Accordingly, because plaintiffs' Amended Complaint fails to
state a claim upon which relief can be granted, federal
defendants' motion to dismiss should be granted. Alternatively,
because there are no material facts in dispute and defendants are
entitled to judgment as a matter of law, summary judgment should
be entered in favor of federal defendants.
FACTUAL AND PROCEDURAL BACKGROUND
The Secretary's decision to restrict access to certain
portions of streets surrounding the White House to general public
vehicular traffic did not occur in a vacuum. Rather, it was the
end result of a serious, thorough examination of White House
security needs, prompted by several recent events demonstrating
the need for increased security in the area.
On September 12, 1994, at 1:49 a.m., a small airplane
crashed onto the South Lawn of the White House, killing the pilot
but injuring no one else. This action prompted then-Secretary of
the Treasury Lloyd Bentsen to order " a 'thorough and
comprehensive' investigation into the circumstances leading to
the plane crash," and to examine "the feasibility of techniques
and measures . . . to safeguard the White House Complex and
protectees therein from air and ground assaults . ."
5
Background Information on the White House Security Review
[Background Information Report], attached as Exhibit B, at 1, 3.
A White House Security Review [the Review] was established with a
Mission Charter, with instructions to conduct an exhaustive
inquiry. Id. at 2, 7.
Shortly after the Review was created, the White House
experienced another serious threat. Francisco Martin Duran
positioned himself in front of the White House and fired twenty-
nine rounds from a semi-automatic assault rifle into the White
House; eleven bullets struck the White House, including one which
penetrated a window in the Press Briefing Room in the West Wing.
Id. at 2. Subsequently, four additional incidents were reported
during the pendency of the Review, although none posed a serious
threat to the President. Exh. B at 3-4.
The Review interviewed and received briefings from over 250
individuals from various agencies and organizations and examined
aver 1OOO documents. Id. at 22. The Review also met with groups
concerned about public access and consulted with noted architects
and urban planners. Id. at 23. At the conclusion, the Review
produced a Classified Report of over 500 pages, with an appendix
of 260 pages. The Report is classified in its entirety at the Top
Secret level, and it includes a detailed discussion and analysis
of the incidents reviewed, air security and ground security at
the White House, and it concludes with eleven major
6
recommendations.[3] Id. at 25.
One of the recommendations concerned vehicular traffic
around the White House Complex. In particular, the Review found
that
[a]fter careful consideration of the information that
has been provided, the Review is not able to identify
any alternative to prohibiting vehicular traffic on
Pennsylvania Avenue that would ensure the protection of
the President and others in the White House Complex
from explosive devices carried by vehicles near the
perimeter.
Id. at 45. The Review also recommended, based on the same
reasoning, that vehicular traffic on State Place and the portion
of South Executive Avenue that connects into State Place also be
prohibited. Id.
Based on the Review's recommendation, and pursuant to
statutory authority, on May 19, 1995, Secretary of Treasury
Robert E. Rubin ordered that:
1. The Director, United States Secret Service, is
directed to close to vehicular traffic the following
streets in order to secure the perimeter of the White
House: (i) The Segment of Pennsylvania Avenue,
Northwest, in front of the White House between Madison
Place, Northwest, and 17th Street, Northwest, and (ii)
State Place, Northwest, and the segment of South
Executive Avenue, Northwest, that connects into State
Place, Northwest.
60 Fed. Reg. 28435 (May 31, 1995), copy attached as Exhibit C.
Id. On May 20, 1995, the foregoing streets were closed. 60 Fed.
Reg. 27882 (May 26, 1995), copy attached as Exhibit D.
[3 While the Review acknowledged that it could not make
public the details of many of its findings, the Treasury
Department made every effort to assure the thoroughness and
objectivity of the Review. See Exh. B at 7.]
7
On May 26, 1995, the Secret Service published a Final Rule,
explaining that the Secret Service had restricted access to the
streets at issue based on the Review's recommendation contained
in the Classified Report.[4] Exh. D. As the Director of the
Secret Service found, the street restrictions were necessary to
provide appropriate protection for the President, the First
Family and those working in or visiting the White House Complex.
The Director also noted that this urgency had been accelerated by
recent events, including the bombing of a federal building in
Oklahoma City. Finding the rule involves a matter relating to
public property, the Director concluded that the APA's notice and
comment procedures and delayed effective date were not required.
Nevertheless, even if such procedures could be found to apply,
the Director concluded that notice and pubic comment procedures
for the rule would be "impracticable and contrary to the public
interest because any delay in this action will result in an
unacceptably high risk of danger to the President, the First
Family, and others in the White House Complex. Exh. D, 60 Fed.
Reg. at 27885.
Plaintiff is an individual who allegedly has since 1981
"devoted his life to regularly communicate with the general
public on issues of broad concern, in Lafayette Park." Amended
Complaint at 2. In the afternoon of May 26, 1995, plaintiff
[4 The Secret Service did not conclude that the action taken
constitutes a "final rule' for purposes of the rulemaking
requirements of the APA; rather, it merely used publication in
the Federal Register as a means of informing the public of its
action. 60 Fed. Reg. at 27883.n. 1.]
8
placed a structure containing a sign and a seat in the restricted
section of Pennsylvania Avenue. He was approached by defendant
D.C. Police Captain Michael Radzilowski, who informed him that he
would have to remove his structure from the street. When
plaintiff refused to do so, Captain Radzilowski ordered him to
remove his structure. Plaintiff again refused and was arrested
and charged with failure to obey a police officer. Amended
Complaint, ¶¶ 22-34.
On May 30, 1995, plaintiff filed this suit, accompanied by a
motion for a temporary restraining order and a motion for a
preliminary injunction. That same day this Court held a hearing
on plaintiff's motion for a temporary restraining order, which
included testimony from plaintiff and Captain Radzilowski. Based
on the testimony and record, the Court concluded that plaintiff's
arrest was lawful in light of his refusal to remove himself, and
his sign with a seat, from the middle of Pennsylvania Avenue.
Exh. D at 52. The Court also concluded that plaintiff had failed
to state a claim under 42 U.S.C. § 1983, 1985, the First, Fourth,
Fifth and Ninth Amendments to the Constitution, the APA, or the
NEPA. The Court concluded that the motion for a temporary
restraining order
is without merit, that the plaintiff is unlikely to be
successful on the merits, that there is a legitimate
public interest in preserving the safety of the
President of the United States in the area of the White
House, and that Captain Radzilowski was acting within
he scope of his authority, and pursuant to valid and
existing law and regulations at the time of the arrest
of the plaintiff.
Exh. D at 53. The court also set a schedule for the filing of
9
further pleadings regarding plaintiff's complaint and action for
a preliminary injunction. On June 5, 1005, plaintiff filed an
Amended complaint, which federal defendats have treated as
superseding his original Complaint.
For the reasons set forth below, federal defendants submit
that this Court properly concluded that plaintiff had failed to
state a claim under any of the constitutional or statutory
provisions raised in his Complaint, and this holds true for these
same claims which are repeated in his Amended Complaint.