Federal Defendant's Memorandum


William Thomas, et. al.       |   
      Plaintiffs pro se,      | 
       v.                     |          C.A. No. 95-1018
                              |       Judge Charles R. Richey
The United States, et. al.    |      
      Defendants.             | 


Plaintiff brought this case challenging the action by the Secretary of the Treasury on May 19, 1995, when he ordered the director of the United States Secret Service to restrict access to portions of certain streets around the White House complex to general public vehicular traffic in order to enhance security and fulfill his statutory mandate to protect the President and the First Family, the white House complex, visitors to the White House complex and workers. Plaintiff also alleges that the Secretary intends to order Lafayette Park to be enclosed with permanent barriers, or to close the Park to members of the public in some unspoecified fashion. finally, plaintiff challenges his arrest by district of columbia officials on May 26, 1995, when he placed a structure containing a sign with a seat on it in the closed portion of Pennsylvania Avenue as part of his demonstration activities and refused to remove the structure when ordered to do so by District of Columbia Metropolitan Police [D.C. Police].

Plaintiff claims that the foregoing actions violate his constitutional rights under the First, Fourth, Fifth and Ninth Amendments to the Constitution, as well as his rights under the Administrative Procedure Act (APA), the National Environmental Protection Act (NEPA), and 36 C.F.R. 1.5, which governs the


closing of public parks. [1]. Amended complaint at 1, 3. [2]. these claims are without merit.

Plaintiff's speculation concerning any future action regarding the streets restricted on May 20, 1995, and the security borders in Lafayette Park clearly run afoul of the ripeness doctrine. Plaintiff does not allege that any such final action has been taken; indeed, none has. Thus the Court has no concrete controversy before it to adjudicate concerning these allegations.

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.]


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


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.


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 . ."


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


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.]


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.]


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


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.