Memorandum Continued

ARGUMENT

I. The Closing of Portions of Certain Streets to
General Public Vehicular Traffic on May 20, 1995
Was Well Within the - Statutory Authority.

Under 18 U.S.C. S 3056(a) (1)-(2), the United States Secret Service, under the direction of the Secretary of the Treasury, is authorized to protect

Presidential security is clearly a compelling governmental interest furthered by this statute. As the Court of Appeals for this Circuit noted with respect to this issue:

At stake is not merely the safety of one man, but also the ability of the executive branch to function in an orderly fashion and the capacity of the United States to respond to threats and crises affecting the entire free world.

White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518,

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1528 (D.C. Cir. 1984).

Section 3056 does not specify the specific steps that the Secret Service is authorized to take to fulfill its responsibility to protect the President. Rather, the statute confers broad authority to the Secret Service in connection with this task to perform "functions and duties as are authorized by law." 18 U.S.C. § 3056(c) (1) (F).

Similarly, 3 U.S.C. § 202 authorizes the Secretary to protect the White House and any building in which the Presidential Offices are located. This provision makes clear that the Secretary possesses the authority to protect what now constitutes the White House Complex, which is bounded by the streets closed by the Secretary's May 19 Order.

In this case it was determined after careful study that in order adequately to protect the President and the White House Complex, certain portions of streets surrounding the White House needed to be closed to general public vehicular traffic in order to enhance protection of the President and others in the White House Complex from vehicle-carried bombs, such as the one that caused such great devastation and tragedy in Oklahoma City a bare month earlier. Given the Secret Service's broad authority to protect the President and his family, the May 20th street restrictions fall comfortably within its statutory mandate.

This broad authority easily extends to the intermittent barriers around certain portions of Lafayette Park. In light of the facts surrounding the White House Security Review, and the

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events in Oklahoma City, the restrictions of the streets proximate to the White House Complex compelled a similar and rational need to prevent access to vehicles attempting to cross through the Park to approach the White House Complex.

The Secretary and the Director of the Secret Service act under some of the most compelling interests available, i.e., the protection of the President and his family, and the preservation of the sites of our Executive Branch of Government. The broad statutory authority accorded to the Secretary to meet this interest amply supports the Secretary's action on May 20, 1995.

II. Plaintiff's Speculation Regarding Future Development
Of the Streets and Area Affected By The Secretary of
Treasury’s May 19, 1995 Order Are Not Ripe For Review.

Plaintiff alleges in Count one and Two of his Amended Complaint that defendants plan to replace the barriers erected on May 20, 1995 around Lafayette Park with more permanent structures, resulting in a closure or diminution of access to the Park. Amended Complaint at 9. These claims, based solely on plaintiff's speculation about action the federal government may take in the future, are clearly not ripe for review and must be dismissed.

The Supreme court in Abbott Laboratories v. Gardener, 387 U.S. 136 (1967), explained that the purpose of the ripeness doctrine is:

to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging

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parties.

Id. at 148-49. In Abbott the Supreme Court set forth a two-prong test which requires a court "to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149. Accordingly, as the Court of Appeals for this Circuit has held, if the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed." National Ass'n of Regulatory Until. Comm'rs v. Department of Energy, 851 F.2d 1424 (D.C. Cir. 1988) (quoting State Farm Mutual Auto Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C. Cir. 1986). See also Action on Smoking and Health v. Department of Labor, 28 F.3d 162, 164 (D.C. Cir. 1994); City of Houston. Texas v. HUD, 24 F.3d 1421, 1430-31 (D.C. Cir. 1994).

In this case the future of Lafayette Park is clearly not an issue fit for decision because no final agency decisions have been made with respect to this area. Plaintiff does not argue otherwise. Nor does plaintiff set forth any hardship he will experience from postponing judicial consideration of these issues until "administrative decisions have been formalized," and plaintiff feels the effect of any such decisions "in a concrete way." Abbott Laboratories, 387 U.S. at 148-49. Consequently, plaintiff's claims regarding future action in the area surrounding the White House must be dismissed as premature.

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III. Plaintiff's Claims With Respect to The Secretary of
Treasury’s May 19. 1995 Order Should Be Dismissed.

A. Plaintiff Lacks Standing to Challenge Such Action.

It is well settled that the standing doctrine includes two components, constitutional and prudential, and a plaintiff must adequately allege both components in order to satisfy its burden of pleading. Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'" Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). At an "irreducible minimum, Article III requires that the party who invokes the court's authority show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," that the injury "fairly can be traced to the challenged action," and that the injury is likely to be redressed by a favorable decision." Id. at 472. See, e.g., Lujuan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992); Branton v. FCC, 993 F.2d 906, 908 (D.C. Cir. 1993). The "burden is on the plaintiff to allege facts sufficient to support standing." United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375, 1383 (D.C. Cir. 1984).

The Court of Appeals further stressed in Albuquerque Indian Rights v. Lujuan, 930 F.2d 49 (D.C. Cir. 1991), that

[n]o more fundamental component of standing
doctrine exists than the requirement of a presetly
demonstrable injury in fact directly traceable to the
defendant's supposedly unlawful actions.

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Id. at 54 (emphasis added). The injury must be a 'distinct and palpable' (citation omitted), and not 'abstract' or 'conjectural' or 'hypothetical.'" Id. See also The Humane Society of the United States v. Babbit, 46 F.3d 93, 96 (D.C. Cir. 1995).

Prudential standing requires a party seeking relief for an alleged violation of a federal statute to demonstrate that the injuries they assert fall within the 'zone of interests' of the relevant statute. Animal Legal Defense Fund. Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) [ALDF]. The "zone of interests" test embodies the nprudential concern that federal courts should not adjudicate generalized concerns." Id. at 499. Thus, a would-be plaintiff must establish that his particular interest falls within the interests Congress intended to protect. Legal Assistance for Vietnamese Asylum Seekers v. Department of State, 45 F.3d 469, 471 (D.C. Cir. 1995). See also Florida Audubon Society v. Bentsen, 45 F.3d 469, 471 (D.C. Cir. 1995) (to have standing under NEPA plaintiff must show alleged non-compliance with NEPA has created a risk that serious environmental impacts will be overlooked and that he may be expected to suffer whatever environmental consequences the project may have).

Plaintiff has failed to allege any facts that demonstrate that he has been adversely affected by the closing of portions of streets surrounding the White House and the barriers around Lafayette Park. Plaintiff does not allege that he drives in this area, and thus has been aggrieved by the street restrictions. Rather, plaintiff alleges that he maintains a permanent presence

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in Lafayette Park. Amended Complaint at 2. He does not allege that the May 20th action has forced him to move from his location in Lafayette Park or that the action has prohibited people from coming into the Park to hear his message. He does not allege that serious environmental impacts, if any, will be overlooked as the federal government considers the future of this area; on the contrary, he alleges that an Environmental Impact Statement is scheduled to be performed during this process. Amended Complaint ¶ 13 & Exh. 1. Finally, plaintiff does not allege, nor can he show, any environmental consequences that may follow the street restrictions on May 20th.

Plaintiff's failure to allege any concrete injury to himself from the May 20th street restrictions demonstrates his lack of standing to raise any claims associated with this action. Accordingly, plaintiff's Amended Complaint should be dismissed for lack of standing.

Nevertheless, even if this Court were to find that plaintiff's Amended Complaint alleges sufficient facts to grant plaintiff standing, plaintiff's claims still should be dismissed far failure to state a claim.

B. Plaintiff's Claims Under the First
Amendment Should be Dismissed.

In Counts One and Two of the Amended Complaint, plaintiff argues that the government's alleged plan to replace the barriers surrounding Lafayette Park since May 20, 1995, with permanent ones would Chill, disrupt or terminate the exercise of plaintiff's constitutionally-protected expressive religious

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activities," thereby violating his, and the public's, rights under the First Amendment. Amended Complaint at 8-9.

As explained above, plaintiff's claim that the federal government intends to close off Lafayette Park to the public or enclose it with barriers rests on nothing more than sheer speculation, which cannot form the basis of a concrete case or controversy before this Court. Since there is no evidence that any such plan is actually in existence, plaintiff's First Amendment rights clearly have not been threatened.

In Count Eleven of the Amended Complaint, plaintiff also alleges that the street restrictions on May 20, 1995, "with the possible exception of closing Pennsylvania Avenue," violate his First Amendment rights.

Although plaintiff discusses at length the importance of First Amendment rights, he does not allege any facts that show his First Amendment rights have been diminished. Plaintiff does not allege that he has been forbidden from maintaining a presence on the White House sidewalk and southern part of Lafayette Park where he has been since 1981. Amended Complaint at 2. Plaintiff does not allege that he has been prohibited from communicating with members of the public. At most plaintiff alleges that he was arrested on May 26, 1995, when he placed a structure containing signs in the restricted section of Pennsylvania Avenue. Amended Complaint 22. While this arrest was carried out by District of Columbia police officers, federal defendants note that plaintiff was arrested only because he placed his structure

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in a closed portion of Pennsylvania Avenue, in violation of 24 D.C.M.R. 100.1` 5./ and then refused to heed a D.C. Officer's order D.C.M.R. 100.1to remove it. Thus, plaintiff was not arrested because he sought to engage in First Amendment protected speech in Pennsylvania Avenue, but because his sign was occupying public space without a permit. Id.; Exh. A at 31.

To the extent that plaintiff's Amended Complaint can be read to claim that plaintiff has the right under the First Amendment to engage in whatever kind of speech or expressive conduct he wants in the now closed portion of Pennsylvania Avenue, plaintiff's claim is without merit. The Supreme Court made clear in Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981), that the right to express ideas is not wholly unfettered. Thus, the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired. Id. It is well settled that "[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities. Cornelius v. NAACP Leqal Defense and Educational Fund Inc., 788 U.S. 799-800


[5 24 D.C.M.R. 100.1 provides in pertinent part that "[o]ccupation of public space beyond the extent permitted by existing law or regulation, or as those laws or regulations may be amended from time to time, is hereby forbidden. The Mayor, however, may authorize the issuance of a permit for a use of public space . . . .:"]

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(1985). Consequently, the government may in appropriate circumstances place reasonable restrictions on the time, place or manner of protected speech, so long as ample alternative means of communication are left open. see also, e.g,, Ward v. Rock Against Racism, 491 U.S. 781 (1989); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984); Heffron, 452 U.S. at 647-48; CCNV v. Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989).

In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1983), a case which involved an unsuccessful challenge to the National Park Service's regulation banning camping in the National Parks except in campgrounds specifically designated for such purpose[6] the Supreme Court set out the test of a regulation that impacts speech in a traditional public forum:

Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

Clark, 468 U.S. at 293-294 (citations omitted). The traditional three-part test set out in Clark has been consistently used and reaffirmed by later decisions of the Supreme Court. See, e.g., Ward v. Rock Against Racism, 491 U.S. at 791.


[6 In Clark, the plaintiff had sought to conduct a wintertime demonstration in Lafayette Park and the Mall to demonstrate the plight of the homeless; as part of the demonstration, plaintiff sought permission for the demonstrators to sleep in tents erected in these areas as a symbol of homelessness. Id., 468 U.S. at 291 - 92.]

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The D.C. Ordinance prohibiting the placement of obstacles in public streets such as Pennsylvania Avenue easily satisfies Clark's three-part test for determining the constitutionality of time, place, or manner regulations. The Ordinance clearly does not regulate speech based upon its content or message; rather, the Ordinance imposes impartial rules that apply to all persons seeking to engage in demonstrations or special events, whatever the content of their message. The Ordinance is clear and precise, plainly not "open to the kind of arbitrary application that [the Supreme Court] has condemned as inherently inconsistent with a valid time, place and manner regulation . . . ." Heffron 452 U.S. at 649; Ward, 491 U.S. at 793-96. The Ordinance is also "narrowly tailored to serve a significant government interest." The Court of Appeals for this Circuit has repeatedly recognized that safety, pedestrian and traffic flow are legitimate governmental interests justifying narrowly tailored restrictions on speech, See, e.g., Juluke v. Hodel, 811 F.2d 1553, 1560 (D.C. Cir. 1987); White House Vigil for the ERA v. Clark, 746 F.2d 1518 (D.C. Cir. 1984).

Plaintiff alleges that the now closed section of Pennsylvania Avenue where he placed his structure is regularly used by pedestrian traffic, skaters and bicycles, see Amended Complaint 8 20, and thus presumably should be available for him to engage in his First Amendment activities. Plaintiff fails to realize,however, that there is a difference between engaging in speech activities on the closed section of Pennsylvania Avenue,

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and placing an obstruction in the street. As Officer Radzilowski testified, plaintiff could walk in Pennsylvania Avenue carrying a sign, but the structure he placed in the street required two individuals to pull it there, and thus he was occupying space in violation of 24 D.C.M.R. 100.1. Exh. A at 33. Moreover, although the roadway is closed to general public vehicular traffic, it is still intended for use by, for example, police vehicles, fire trucks, emergency vehicles and motorcades. Id. at 36. Having individuals in the roadway with obstructions such as plaintiff's would require a longer time period to clear the roadway in the event of an emergency, id. at 39, thereby obviously interfering with the ability of appropriate individuals to respond to an emergency in the area. Thus, the D,C. Ordinance is "narrowly tailored" to serve the substantial government interest in maintaining Pennsylvania Avenue open for emergency responses and other official events.

The Ordinance also satisfies the third prong of the Clark test, in that it leaves open ample alternative channels for communication. It is undisputed that plaintiff and others may seek to communicate their messages in various ways. As the Court of Appeals concluded, when upholding the Park Service's regulation concerning signs and parcels on the sidewalk in front of the White House, those seeking to demonstrate in the area may still "engage in a rich variety of expressive activities: they may picket, march, hand out leaflets, carry signs, sing, shout, chant, perform dramatic presentations, solicit signatures for

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petitions, and appeal to passersby." White House Vigil, 746 F.2d at 1528. The availability of such alternative channels of communication amply satisfy First Amendment concerns with respect to time, place, and manner limitations. Id.

As plaintiff may continue to engage in all the First Amendment activities he has lawfully engaged in to date, and may further engage in First Amendment activities in the closed portion of Pennsylvania Avenue to the extent permitted by D.C. statute or regulation, plaintiff's First Amendment claims in connection with the May 20th street restrictions should be dismissed.