UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, 
Ellen Thomas,
Robert Dorrough,and             C.A. No. 87-3290
William Thomas, et. al.         Judge Oberdorfer
              Plaintiffs pro se,
                                   REQUEST FOR AN EXPEDITED 
         v.                        TEMPORARY RESTRAINING ORDER,

Donald Hodel,                            CLASS ACTION, 
James L. McDaniel,
the U.S. Park Police, and              IN FORMA PAUPERIS
the U.S. Secret Service,                      AND
              Defendants.          PETITION FOR A PRELIMINARY 
                                           INJUNCTION

PETITION FOR A PRELIMINARY INJUNCTION

JURISDICTION

This Court has jurisdiction in this matter pursuant to 5 USC 552, 553 (The Administrative Procedure Act (hereinafter "APA"]), and the First, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States of America (hereinafter "the Constitution").

PARTIES

PLAINTIFFS

All named plaintiffs are adult human beings residing within the legal jurisdiction of the United States of America who regularly demonstrate at Lafayette Park for the global elimination of nuclear weapons.

et. al. includes 1) other unnamed individuals who regularly demonstrate at Lafayette Park for any reason, 2) groups and individuals exempted from permit restrictions pursuant to "the Small Group Permit Exemption" of Title 36 Code Of Federal Regulations, and 3) members of the general public who have traditionally viewed the arrival and departure of dignitaries visiting the White House, excepting such individuals as might be factually shown to pose a threat to some "substantial government interest." U.S. v. O'Brien. 391 U.S. 367.

DEFENDANTS

Donald Hodel is Secretary for the Department of Interior, Department of Interior Building, 18th and C Street, N.W., Washington, D.C., sued in his official capacity.

James L. McDaniel is an Associate Regional Director, National Capital Region, National Park Service, 1100 Ohio Dr. S.W., Washington, D.C. 20242, sued in his official capacity. The U.S. Park Police is the law enforcement agency of the Department of Interior and the National Park Service, sued in its official capacity.

The U.S. Secret Service is the enforcement agency responsible for Presidential security, and the domestic security of visiting foreign dignitaries, sued in its official capacity.

NATURE OF COMPLAINT

1. During the mid-afternoon of December 5, 1987 U.S. Park Ranger James Benton hand-delivered a document entitled Notice To The Public (hereinaFter "the Notice") to defendant Concepcion Picciotto, William Thomas, and other plaintiffs. Plaintiffs' Exhibit (hereinafter "Pl's Ex.H) 1.

2. The Notice suggests that "(p)ersons demonstrating should remove themselves from (the southern portion of Lafayette Park) when notified by the U.S. Park Police. Id.

3. The Notice fails to cite any statute, ordinance, regulation, or other provision of law which would require that "(p)ersons demonstrating ... should remove themselves from (the southern portion of Lafayette Park) when notified by the U.S. Park Police."

4. If enforced by the U.S. Park Police, the Notice will deprive rights, privileges, and immunities guaranteed plaintiffs under the First, Ninth, and Fourteenth Amendments of the Constitution, in violation of the Fifth Amendment.

FACTS

5. The Notice erroneously purports that "(t)hese actions are necessary to provide a secure route of access for the visiting Head of State." Pl's Ex. 1.

6. The "head of Staten for the Union of Soviet Socialist Republics is Andrei Gromyko (Pl's Ex. 2), who is not expected to "visit Washington between December 7 - 10, 1987. Mikhail Gorbachev is merely the General Secretary of the Communist Party.

7. There is no factual basis to support the hypothetical premise that removal of plaintiffs from the southern portion of Lafayette Park is "necessary to provide a secure route of access for (a) visiting Head of State," or anyone else.

8. To the best Of plaintiffs' knowledge the Notice was never published in the Federal Register, and no other attempts were made prior to December 5, 1987 to notify plaintiffs or any other segment of the public regarding the Notice.

9. Defendants cannot shaw that martial law has been declared in the United States.

10. It is quite reasonable to infer that plaintiffs favor the secure, unimpeded facilitation of the proposed "Reagan/ Gorbachev" summit. E.g., Pl's Ex. 3.

11. Defendants have no reasonable cause to suspect that any plaintiffs presently conducting regular demonstration activities in the southern portion of Lafayette Park pose a threat to any "visiting Head of State," much less a mere general secretary of the communist party.

12. Plaintiffs Ellen and William Thomas, and certain identifiable unnamed plaintiffs, have regularly circulated a petition calling for joint amendments to the Constitutions of the United States and the Union of Soviet Socialist Republics for the ultimate purpose of eliminating armed conflict. Pl's Ex. 4.

13. Plaintiff Ellen Thomas and certain identifiable plaintiffs have worked diligently to bring this petition to the attention of Mikhail Gorbachev and Ronald Reagan. Plaintiffs have reason to believe that Hr. Gorbachev may have personal knowledge of the aforesaid petition.

14. Plaintiffs Ellen and William Thomas have also extended an invitation to First Secretary Gorbachev. Pl's Ex. 5.

15. Since 1981 plaintiffs Concepcion Picciotto and William Thomas have maintained a continuous presence on the White House sidewalk to symbolize and otherwise communicate the urgency for the global elimination of nuclear weapons.

16. In July, 1983 the National Park Service promulgated restrictions, ostensibly for nsecurity reasons," of demonstrations on the White House sidewalk. SEE, generally, ERA v. Clark 746 F.2d 1519-1555.

17. On July 19, 1983, at the suggestion of the National Park Service (id, page 1528), plaintiffs Picciotto and Thomas moved their presence to the southern part of Lafayette Park.

18. During the course of their six-plus year continuous presence these two plaintiffs have been present for scores of visits to the White House by bona fide *Heads of State.n They have never before been excluded from the "route of access" of any "visiting Head of State,n (including passage by President Reagan. Neither of these plaintiffs has either threatened the security of any person or impeded the passage of any person, and declare· under penalty of perjury that they will not do so now. Pl's Exs. 6 and 7.

19. Plaintiff Robert Dorrough has regularly maintained a continuous presence intended to communicate the urgency of the global elimination of nuclear weapons. Dorrough demonstrated on the White House sidewalk from March, 1983 until July 19, 1983, when he also moved to the southern part of Lafayette Park.

20. During the course of his regular demonstration activities Dorrough has been present for scores of visits to the White House by bona fide "Heads of State." He has never before been excluded from the "route of access" of any "visiting Head of State," including Passage by President Reagan. This plaintiff has never threatened the security of any person or impeded the passage of any person, and declares under penalty of perjury that he will not do so now. Pl's Ex. 8.

21. Plaintiff Ellen Thomas has maintained a continuous presence in the southern part of Lafayette Park since April, 1984, for the purpose of communicating the urgency of the global elimination of nuclear weapons.

22. During the course of her continuous presence Ellen Thomas has been present for scores of visits to the White House by bona fide "heads of State." She has never before been excluded from the "route of access" of any "visiting Head of State," including passage by President Reagan. This plaintiff has never threatened the security of any person or impeded the passage of any person, and declares under penalty of perjury that she will not do so now. Pl's Ex. 9.

23. Other plaintiffs have regularly maintained continuous presences in the southern part of Lafayette Park for the purpose of communicating on various peace and social justice issues. They have never before been excluded from the "route of access" of any "visiting Head of State," including passage by President Reagan. During the course of those continuous presences those plaintiffs have been present for dozens of visits to the White House by bona fide "Heads of State," and have never threatened the security of any person or impeded the passage of any person, and would be willing to declare under penalty of perjury that they will not do so now.

24. Traditionally the southern portion of Lafayette Park has remained open to the public during the ingress to and exit from the White House for many hundreds of visits by bona fide "Heads of State," and lesser state dignitaries. There has never been an assault upon or impediment to the ingress or exit of any of those visitors.

25. A hearing Will reveal that defendants had the intent to suggest that "(p)ersons demonstrating ... should remove them selves from (the southern portion of Lafayette Park) when notified by the U.S. Park Police," and had taken steps to enforce that "suggestion" well in advance of December 5, 1987. Pl's Ex. 7, para. 6.

26. Plaintiffs believe that, should they decide not to "remove themselves from (the southern portion of Lafayette Park) when notified by the U.S. Park Police," the U.S. Park Police will be ordered to remove them forcibly.

INJURY

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 money 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.

If enforced against plaintiffs, the Notice would violate their right to freely utilize a public park, in violation of the Ninth Amendment.

The Notice is totally unprecedented, an arbitrary and capricious abuse of administrative discretion unsupported by any statute, ordinance, regulation, or other provision of law, and if applied to plaintiffs would violate their rights to due process under the Fifth and Fourteenth Amendments. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury." Marbury v. Madison, 1 Cranch 138, 163 (1803).

Courts should not merely infer a government's "good intent," but should examine those intents when a reasonable question is raised as to the permissibility of the Government's motives. City of Los Angeles v. Taxpayers for Vincent, 104 S.Ct. 2118 (1984). In an instance such as presented here -- where the Government makes absolutely no attempt to define a factual basis for its purported "security" concerns -- it is only possible to infer the Government's "good intent" by refusing to examine those intents.

ALLEGATIONS

COUNT ONE

In light of the numerous visits made by actual "Heads of State" when it was possible "to provide a secure route of access" without the suggestion that "persons demonstrating ... should remove themselves" from "the southern portion of Lafayette Park," plaintiffs allege that the Notice represents an arbitrary and capricious abuse of power, lacking any reasonable basis in fact and, unless enjoined, would allow the Park Service or any Government agency to capriciously implement unnecessary restrictions, thus forging an extra-legal tool capable of disrupting Constitutionally-protected activities, in violation of the APA, and 18 USC.

COUNT TWO

Plaintiffs allege that the Notice fails to satisfy the "public notice" prerequisites of the APA.

COUNT THREE

Plaintiffs allege that the Notice fails to meet numerous other requirements of the APA. E.g. "Public Comments."

COUNT FOUR

Plaintiffs allege that none of the defendants have any valid authority by which to legally enforce the suggestion that demonstrators "remove themselves" from "the southern portion of Lafayette Park." Any forced removal of plaintiffs' persons from the "southern portion of Lafayette Park" would violate plaintiffs' due process rights under the Fifth and Fourteenth Amendments.

COUNT FIVE

Plaintiffs allege that defendants have failed to satisfy the criteria by which the Government is allowed to pass regulations which interfere with demonstration activity under the free speech clause of the First Amendment. USA v O'Brien. U.S.

COUNT SIX

If enforced against plaintiffs, the Notice would deprive them of the opportunity to enjoy freedom of association with Mr. Gorbachev, in violation of the First Amendment.

COUNT SEVEN

If enforced against plaintiffs, the Notice would deprive them of their right to remain in a public park, in violation of the Ninth Amendment, and similar to the "barring orders" issued by the Government of South Africa.

THE REQUIREMENTS FOR TEMPORARY RELIEF

Because the defendants waited until mid-afternoon of December 5, 1987 before notifying plaintiffs of plans to implement the restrictive measures implied by the Notice, although defendants had formulated those plans well in advance of December 5, 1987, defendants should have no valid grounds for an abjection to an expedited disposition of plaintiffs' request for a Temporary Restraining Order. Supra, para. 25.

In light of the foregoing discussion, it is clear that the plaintiffs have 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 the plaintiffs will prevail on the merits of the Complaint.

Second, if relief is not granted, plaintiffs will be irreparably injured in their efforts to exercise their freedom of expression. Moreover all plaintiffs would become vulnerable to continual random, capricious, unjustifiable regulatory reinterpretation and enforcement (for if the Court should decline to demand justification, who else will?). This will create not only a chilling effect on the exercise of their Constitutional rights.

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.

29. Finally, the public interest clearly lies in compelling the Government to avoid unnecessary restrictions on First Amendment freedoms. This is especially so here in that "there are unique First Amendment values in use of (Lafayette Park)." (ERA v. Watt, USDC CA-83-1243, Memorandum Opinion, Judge Bryant.)

PRAYER FOR RELIEF

WHEREFORE plaintiffs hereby pray the Court for a Temporary Restraining Order pending a hearing an their Motion Far A Preliminary Injunction for the purpose of restraining Government defendants from subjecting plaintiffs to unnecessary abuse, under extra-legal restrictions, and to enjoin the defendants from barring any individual from any portion of, Lafayette Park without showing probable cause for such an exclusion.

Proposed Orders are attached.

Respectfully submitted this 7th day of December, 1987,


(Signed)
Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008

(Signed)
Ellen Thomas, Plaintiff Pro Se
1440 N Street NW, #410,
Washington, D.C. DC 20005

(Signed)
Robert Dorrough, Plaintiff Pro Se
Post Office Box 27217
Washington, D.C. 20038

(Signed)
William Thomas, Plalntlff pro se
1440 N Street, NW, Apt. 410
Washington, D.C. 20005
(202) 462-0757

CERTIFICATE OF SERVICE

I, W.C. Wardlaw, hereby state that, on December 7, 1987, I served copies of the foregoing Petition For A Preliminary Injunction, and Request for an Expedited Temporary Restraining Order upon the office of Joseph diGenova, and upon John Bates, Assistant U.S. Attorney.

(Signed)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, 
Ellen Thomas,
Robert Dorrough, and            C.A. No. 87-3290
William Thomas, et. al.         Judge Oberdorfer
              Plaintiffs pro se,
                                   REQUEST FOR AN EXPEDITED 
         v.                        TEMPORARY RESTRAINING ORDER,

Donald Hodel,                            CLASS ACTION, 
James L. McDaniel,
the U.S. Park Police, and              IN FORMA PAUPERIS
the U.S. Secret Service,                      AND
              Defendants.          PETITION FOR A PRELIMINARY 
                                           INJUNCTION

TEMPORARY RESTRAINING ORDER

Upon Consideration for Plaintiffs' Petition for Declaratory Injunction, and plaintiffs' Expedited Request for a Temporary Restraining Order, this ___ th day of December, 1987, it be and hereby is

ORDERED defendants shall not physically enforce their suggestion that plaintiffs "remove themselves" from the southern portion of Lafayette Park without first demonstrating good cause.

U.S. District Court Judge

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto, 
Ellen Thomas,
Robert Dorrough, and            C.A. No. 87-3290
William Thomas, et. al.         Judge Oberdorfer
              Plaintiffs pro se,

         v.                        REQUEST FOR AN EXPEDITED 
                                   TEMPORARY RESTRAINING ORDER,
Donald Hodel,                            CLASS ACTION, 
James L. McDaniel,
the U.S. Park Police, and              IN FORMA PAUPERIS
the U.S. Secret Service,                      AND
              Defendants.          PETITION FOR A PRELIMINARY 
                                           INJUNCTION

PRELIMINARY INJUNCTION

Upon Consideration for plaintiffs' Petition for a Preliminary Injunction, and plaintiffs' Expedited Request for a Temporary Restraining Order, this __th day of December, 1987, it be and hereby is

ORDERED defendants and their agents shall not intimidate plaintiffs nor physically enforce the suggestion that plaintiffs "remove themselves" from the southern or any other portion of Lafayette Park without first establishing a factual basis in which would further some "substantial Government interest" that can not be achieved through a less restrictive means.

U.S. District Court Judge