Opposition to Summary Affirmance

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No.95-5338

September Term, 1995
USDC No. 95cv01018
William Thomas, et al., Appellants

v.

United States of America, et al., Appellees

APPELLANT'S COMBINED OPPOSITION TO THE
DISTRICT OF COLUMBIA AND FEDERAL APPELLEES'
MOTIONS FOR SUMMARY AFFIRMANCE

On November 13, 1995, Federal and District of Columbia [1] appellees filed Motions for Summary Affirmance ("MSA") of the September 14, 1995 District Court Order, denying appellant's motion for reconsideration of the Court's August 31, 1995 Order, granting appellees' motions for summary judgment .

When the Complaint in this matter was filed on May 30, 1995, appellant was unaware that appellees had published a public notice in the Federal Register, 60 Fed. Reg. 27882 (May 26, 1995). In light of this fact appellant would agree that summary affirmance would be appropriate with respect to Counts Five and Six of the Amended Complaint. Record at. 7.

In all other respects, as explained below, appellant respectfully opposes appellees' Motions for Summary Affirmance.

I.

One of the issues presented on appeal is whether "the District Court erred in

[1 The District of Columbia submitted no memorandum in support of it's Motion. References herein are to the memorandum in support of Federal appellees Motion for Summary Affirmance ("MSA").]

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deciding this case based on unsubstantiated proffers from government counsel." Statement of Issues, October 30, 1995. Another issue is whether "The District Court erred in .... refusing to consider evidence submitted by appellant." Appellees' Motions should be approached with these questions in mind.

"Appellant filed suit challenging an order by the Secretary of the Treasury on May 19, 1995, directing the Director of the United States Secret Service to exclude general public vehicular traffic from portions of certain streets around the White House Complex to enhance security and ... to protect the President and the First Family and the White House complex.... [2] Appellant challenged his arrest by District of Columbia officials on May 26, 1995, when he placed a structure containing a sign ... 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]. (R. 1)

"The street restrictions appellant complained of were the end result of a(n allegedly) thorough examination of White House security needs, prompted by several recent events demonstrating the need for increased security. The catalyst for the examination occurred on September 12, 1994, when a small airplane crashed onto the South Lawn of the White House, killing the pilot but injuring no one else... (R. 10, [Background Information on the White House Security Review], Exh. B, at 1, 3).

"A White House Security Review ... was established.

"Based on the Review's recommendation ... 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.'

"(A)ccess to the streets surrounding the White House Complex were restricted with respect to general vehicular traffic.

"Appellant alleges that he 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." [R. 7, Amended Complaint at 2]. On May 26, 1995, appellant placed a .... sign ... in the restricted section of Pennsylvania

[2 "Notwithstanding a strong prima facie presumption that the closing of Pennsylvania Avenue might serve a substantial security interest, owing to the procedure-less process by which defendants' unprecedented closure was accomplished, it is not possible to know whether the street closing does indeed serve a rational and/or legitimate government interest." Record at 7, ¶¶17.]

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Avenue. He was approached by appellee D.C. Police Captain Michael Radzilowski, who informed him that he would have to remove his structure [3] from the street. When appellant refused to do so, Captain Radzilowski ordered him to remove his structure. Appellant again refused and was arrested and charged with failure to obey a police officer. [Id., Amended Complaint, ¶¶ 22-34].

Appellant commenced this action (o)n May (30,) 1995, claiming that the foregoing actions violated his constitutional rights under the First, Fourth, Fifth and Ninth Amendments to the Constitution, as well as his rights under the APA, the National Environmental Policy Act [NEPA], and 36 C.F.R. § 1.5, which governs the closing of public parks, In June 1995, federal appellees moved to dismiss or, in the alternative, for summary judgment on the grounds that appellant lacked standing to raise any of the claims asserted against the federal government and that the government was entitled to a dismissal or summary judgment on appellant's statutory and constitutional claims." MSA, pgs. 1-5 (parenthesis added, brackets in original)

II.

To a large extent appellant agrees with appellees' representations, but asserts that counsel omits significant information, and misunderstands or miscasts other facts. In addition to closing the streets which appellees mention, both Jackson Place and

[3 Appellant asserts that the object in question is a "sign." Appellees and the District Court have preferred to characterize it as a "structure," or even a "cumbersome structure." This semantic dispute is not germane to the case at hand, except to the extent that it may prejudice appellant through the false impression that the object in question may have presented a serious obstruction.
First, Lafayette Park is the site of many detailed regulations which govern demonstrations. Under these regulations, "the term 'structure' does not include signs ... exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two (2) or more sides." 35 C.F.R 7.96(g)(x)(B)(2).
It is undisputed on the Record that (1) the sign strictly conformed to Park Service regulations, and (2) could be, and regularly was moved by one person. Record at 29 (Statement of Facts to Which There Exist Genuine Material Issues in support of Plaintiffs' Opposition to the Federal and District of Columbia Defendants' Respective Motions to Dismiss or in the Alternative for Summary Judgment), ¶¶ 37, 38.
Finally, the District Court noted, "The Plaintiff maintains his presence in Lafayette Park. He is not prohibited from displaying his sign and seat structure there, or from relaying his message in any manner in Lafayette Park..." Record at 46 (Order, August 31, 1995), pg. 16.]

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Madison Place have also been closed. Moreover, Lafayette Park has been surrounded by concrete traffic barriers. Although these street closures and barriers are more relevant to the instant case than is the closure of Pennsylvania Avenue. (Record at 7, ¶¶ 18-19), they are not issues appellees' have addressed. [4]

Not only is appellees' presentation incomplete, it is graphically inaccurate as well. The map included in appellees' Federal Register publication (May 26, 1995, pg 27884) depicts Jackson Place and Madison Place as being open, and does not indicate the concrete barriers around the Park. Record 10, Exhibit D. Appellant submitted a map which more accurately portrays the actual areas affected. Record 30 (Motion for Judicial Notice of Exhibits), Exhibit 10. The District Court, which denied the Motion for Judicial Notice as "moot" (Record at 46), may have overlooked this fact.

Only by focusing on Pennsylvania Avenue, and glossing over the more pertinent issues of concrete barriers, can appellees contend appellant really doesn't have anything to complain about:
"(A)ppellant did not allege that he drives in this area, and thus has been aggrieved by the street restrictions." (R. 47, slip op. at 11). " MSA, pg. 10.
Commenting that appellant challenged "an alleged plan by the Federal Defendants to enclose Lafayette with permanent barriers or to close or diminish access to the Park in some unspecified manner" (Record at 47, pg. 6), the Court held,
"The plaintiff must have suffered an `injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or

[4 "Exclusive of the Pennsylbania Avenue closing, and given the procedure-less process by which defendants' unprecedented enclosure of Lafayette Park has been accomplished, it is not possible to k now whether the concrete barriers presently surrounding the Park serve any rational and/or legitimate government interest." Record at 7, ¶¶ 18, 19.]

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imminent, not conjectural or hypothetical." Id. "Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Record at 47, pgs. 9, 10.
In this case the particular concrete barriers which enclose Lafayette Park are neither conjectural nor hypothetical. If, as the Court has held, appellant's sign constituted an "obstruction to travel." (Record at 47, pg. 4), for consistency, the concrete barriers around the Park must also be "obstruction(s) to travel." [5]

If appellant, or any other person had positioned those concrete barriers around the Park, they would have been liable to arrest. Certainly if the placement of an "obstruction to travel" in a "street closed to vehicular traffic" can be considered enough of an "injury" to justify the arrest of an individual, then, to be consistent, appellees' placement of numerous "obstructions to travel" all around the Park must also be an considered an "injury" to "our free and democratic nation" (Record at 7, Exhibit 1 & 2), not to mention appellant's unimpeded ingress and egress to and from the Park.

Appellees posit that the barriers across Pennsylvania address the danger posed by "vehicle carried bombs." However, appellees offer no reason for concrete barriers around the Park. Whether or not "the barriers around the Park ... should," as the Court opines, "significantly enhance the accessibility of the White House to visitors," (Record at 47, pg. 11, citing Record at 10, pgs 45-46, emphasis in the Court's Order), remains a

[5 It should be noted that these barriers, upon which appellant attaches such sugnificance, but which appellees and the District Court like to ignore, were not mentioned in the White House Security either.]

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question of fact [6] upon which the Court should not rely for summary judgment.

Appellees' most overplayed card is "security."[7] to the extreme of claiming that the placement of appellant's sign a scant 15 feet closer to the White House affects,
"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." Record at 10, pg. 10.
Because police have a great deal of power, susceptible to abuse, potential abuse of police power has been deemed an "injury" sufficient to confer standing.

"The expertise of those entrusted with the protection of the President does not

[6 "The Review produced a classified Report of over 500 pages, with an appendix of 260 pages ... and concludes with eleven major recommendations." Record at 10, pg. 25. Unfortunately the Report doesn't throw much light on the pertinent issue of the instant matter, because it "is classified in its entirety at the Top Secret level." Id.

The document on which the Court relies is not the Review itself, but the unclassified Background to the Review. Appellees do not contend this document was prepared under oath, or that it even resolves all disputed issues.
"The judgment sought shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).]
[7 "The precautions of a dictator' versus what is "possible in a democracy" has often been at issue in similar litigations concerning the forum again at issue here, e.g.,
"For instance, in a "Position Paper' dated July 24, 1967, the Secret Service stated its strong belief:
"'that the continuation of picketing and demonstrating by protest groups in front of the White House constitutes a threat to the safety of the President of the United States and that this activity should not be permitted.' (cite omited).
Of course it is understandable that those charged with Presidential safety would prefer, as Judge Hart put it, to take 'the precautions of a dictator' to shield him (or the White House complex) from danger. (Finding 23), A Quaker Action Group v. Morton, Civil Action No. 688-69 (DDC August 22, 1973). This, of course, is simply not possible in a democracy, for the President cannot be kept in a steel room away from the public. We would observe, however ... testimony from the Assistant Director for Protective Intelligence for the Secret Service who rated the White House as virtually the safest place for the President. (Tr. at 164)." A Quaker Action Group v. Morton, 516 F.2d 717, ftn. 40 (1975) (parentheses in original).]

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qualify them to resolve First Amendment issues, [8] the traditional province of the judiciary. A balancing of First Amendment freedoms against the requirements of Presidential safety may be left to other agencies in the first instance. But absent a compelling showing-- which has not been begun here-- that courts cannot evaluate the questions of fact involved in estimating danger to the President, the final judgment must rest with the courts. To enable the court to reach a reasoned conclusion, it is incumbent upon any party who would invoke Presidential safety as a paramount consideration to provide the court with the information necessary to an even-handed decision." Quaker Action Group v. Hickel et al., 421 F.2d 1111, 1117. [9]
Courts in the Federal District routinely hear cases which pit constitutional rights against purported "substantial government interests," including "security."
"We are ... spared the need for any extended 'forum analysis' in this case, as no one disputes that Lafayette Park is a 'quintessential public forum,' see White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly, 'the government's ability to permissibly restrict expressive conduct [there] is very limited.' United States v. Grace, 461 U.S. 171, 177; Quaker Action Group v. Morton, 460 F.2d 854 (1971); A Quaker Action Group v. Hickel, 429 F.2d 185 (1970); A Quaker Action Group v. Hickel, 421 F.2d 1111 (1969); Women Strike for Peace v. Morton, 472 F.2d 1273 (1972); A Quaker Action Group v. Morton, 516 F.2d 717 (1975); United States v. Abney, 175 U.S.App.D.C. 247, 534 F.2d 984 (1976); Community for Creative Non-Violence, et al., Appellants, v. WATT, Secretary of the Interior, et al. 703 F.2d 586 William P. Clark, Secretary of the

8 The Review interviewed and received briefings from "the F.B.I, the CIA, the FAA, ATF, the Metropolitan Police Department (MPD), the Park Police, the Capitol Police, the Department of State, and the Department of Defense." Record at 10, Exhibit B, at 22.

However, there is no indication of participation by First Amendment experts, or specify any consideration of First Amendment uses of the Park the Review.]

[9 The Background Review presented to the Court does not provide this necessary information. Supra, ftn. 6. The information does, however, indicate that the Secret Service has blithely operated above the law since its very beginning. "(W)hen the Secret Service detailed operatives to the White House for the first time in the spring of 1894, it was exceeding its mandate" (Record at 10, Exhibit B, pg. 71); "With the expiration of the emergency war fund these activities once again exceeded the Secret Service's statutory authority;" (id., pg. 73); "Although these activities were generally acknowledged and accepted, the continued to exceed the Secret Service's statutory mandate." (id., pg. 74); "Law thus caught up with reality as the Secret Service finally received express funding to preform the Presidential security function it had assumed twelve years earlier." Pg. 76.]

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Interior, et al., v. Community for Creative Non-Violence et al. 468 U.S. 288; Vietnam Veterans Against the War v. Morton, 506 F.2d 53; O'Hair v. Andrus, 613 F.2d 931; Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090; 968 F.2d 86; United States of America v. Jane Doe, : 968 F.2d 86; Huddle v. Reagan, 968 F.2d 32; United States v. Picciotto, 875 F.2d 345.