MARY HUDDLE and PHILIP JOSEPH, et. al.,)
)
Plaintiffs, Pro Se )
) CA 88-3130-JHG
versus )
) Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al., )
)
Defendants )
________________________________________)
Plaintiffs hereby petition the Court to grant an Order to preserve the status quo by restraining defendants from arresting, issuing CFR citation violations, threatening, or harassing plaintiffs under color of police regulations, codified at 36 CFR 9.76 (i)(1), 36 CFR 9.76 (g)(5)(viii)(2), 36 CFR 9.76 (g)(5)(ix)(2), 36 CFR 9.76 (g)(5)(x)(2), 36 CFR 9.76 (g)(5)(x)(A)(2), 36 CFR 9.76 (g)(5)(x)(A)(3), 36 CFR 9.76 (g)(5)(x)(A)(4), 36 CFR 9.76 (g)(5)(x)(B)(2), 36 CFR 9.76 (g)(5)(xii), 36 CFR 9.76 (g)(5)(xiii), or 36 CFR 9.76 (g)(6), and the District of Columbia "Disorderly Conduct" statute, unless defendants can illustrate that plaintiffs have "violated" the aforesaid regulatory provisions to an extent at least equal to "violations" by members, employees, friends, guests, or associates of the Presidential Inaugural Committee's activities in Lafayette Park, "preparing" for the Inauguration of Mr. George Bush which is presently scheduled for January 20, 1988.
The grounds for this motion are more explicitly set forth in an accompanying Memorandum.
For the Court's convenience a proposed Order is attached.
Respectfully submitted,
________________________
Scott Galindez
Plaintiff, Pro Se
P.O. Box 27217
Washington, D.C. 20038
____________________________
Concepcion Picciotto,
Plaintiff, Pro Se
Post Office Box 4931
Washington, D.C. 20008
_____________________________
Philip Joseph, Pro Se
P.O. Box 27217
Washington, D.C. 20038
___________________________
Sunrise S. Harmony, Pro Se
P.O. Box 27217
Washington, D.C. 20038
_____________________________
William Thomas, Pro Se
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
202-462-0757
_____________________________
Ellen Thomas, Pro Se
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
202-462-0757
I William Thomas, hereby state that, on this ____ day of November, 1988 I caused a copy of the foregoing Defendant's Motion For Preliminary Injunction or Temporary Restraining Order to be hand delivered to the office of the U.S. Attorney at Judiciary Square, 555 4th Street N.W., Washington, D.C.
_____________________________
William Thomas
MARY HUDDLE and PHILIP JOSEPH, et. al., )
)
Plaintiffs, Pro Se )
) CA 88-3130-JHG
versus )
) Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al., )
)
Defendants )
________________________________________)
Upon consideration of plaintiffs' Motion For Preliminary Injunction and Temporary Restraining Order, defendants' opposition thereto, and such testimony and evidence as was presented by all parties during a hearing held in open Court on November __, 1988, the Court concludes that plaintiffs have demonstrated a need for balance in maintaining the status quo of equal protection before the law, and a likelihood that they will prevail on the merits of their claim.
Plaintiffs have alleged a pattern and practice of discriminatory regulatory enforcement which cannot be permitted by a democratic state. Once the predilications and discretion of executive agents or policy makers is allowed to replace the present rule of law, the constitutional form of government which presently guides this country can only cease to exist. It falls to the judicial branch to safeguard the democratic institution against patterns and practices of standardless regulatory enforcement which would have the effect of placing agents or policies of the executive branch above the law.
Therefore, to insure equal protection under the law both to plaintiffs and the population of the United States in general, it is, this ___ day of November, 1988, hereby ORDERED that:
1. defendants are restrained from allowing, condoning, or supporting threats of arrests, or arrests, issuance of citation violation notices, or harassment of plaintiffs under color of the police regulations, codified at 36 CFR 9.76 (i)(1), 36 CFR 9.76 (g)(5)(viii)(2), 36 CFR 9.76 (g)(5)(ix)(2), 36 CFR 9.76 (g)(5)(x)(2), 36 CFR 9.76 (g)(5)(x)(A)(2), 36 CFR 9.76 (g)(5)(x)(A)(3), 36 CFR 9.76 (g)(5)(x)(A)(4), 36 CFR 9.76 (g)(5)(x)(B)(2), 36 CFR 9.76 (g)(5)(xii), 36 CFR 9.76 (g)(5)(xiii), 36 CFR 9.76 (g)(6), and the District of Columbia "Disorderly Conduct" statute against plaintiffs for any activities which cannot be shown to have "impacted park lands in an unsustainable manner," threatened persons, property or a substantial Government interest, unless it can be demonstrated that plaintiffs have exceeded the activities of the similarly situated Presidential Inaugural Committee, or unless plaintiffs have actually been disorderly.
It is further ORDERED:
2) that the Park Police and other Government agents are restrained in deviating from the following definitions in administering the aforesaid regulations:
a) "Camping" does not mean "casual sleep" (SEE Federal Register, June 4, 1982, Vol. 47, No. 108, p. 24301).
b) "Casual sleep" means sleep which occurs without resulting in demonstrable damage to park lands, and shall not constitute probable cause under 36 CFR 9.76(i)(1).
c) "Impacts which the area cannot sustain" means impacts which demonstrably exceed those of similar activities engaged in by the Government (i.e., the Inauguration activities, the Christmas Peace Pageant, e.g., SEE Federal Register, June 4, 1982, Vol. 47, No. 108, p. 24301).
d) "Property" does not include signs, literature, sound amplification, video equipment, musical instruments, or a reasonable number of tools required for the maintenance or protection of the foregoing. Nor does it include protective plastic and rainwear, and other items necessary to protect plaintiffs' persons from the elements during their demonstration.
It is further ORDERED:
3) that defendants or their agents are restrained from a) photographing plaintiffs' activities in Lafayette Park, b) asking the identities of individuals who seek to communicate or associate with plaintiffs, or c) demanding that plaintiffs identify themselves unless and until defendants can provide a legitimate interest to justify such surveillance or identification.
And it is finally ORDERED:
4) that defendants or their agents are restrained from erecting or causing to be erected any fences, barricades, or other impediments during the course of preparations for the Inaugural festivities which would have the sole effect of diminishing or disrupting the general public's association with plaintiffs, or plaintiffs' freedom of movement.
____________________________________
UNITED STATES DISTRICT COURT JUDGE
COPIES OF THIS ORDER SHOULD BE ADDRESSED TO:
AUSA John D. Bates
Judiciary Square
555 4th Street N.W.,
Washington, D.C. 20001
Assistant Corporation Counsel Arthur Burger
1350 Pennsylvania Avenue, 3rd floor
Washington, D.C. 20001
INTRODUCTION
Plaintiffs have been engaged in Constitutionally-protected continuous presences 1/ in Lafayette Park, a public forum. See, Original Complaint, filed September 30, 1988, para 4 (hereinafter "Complaint," as distinct from the Amended Complaint, filed in support of this motion). Individually, each plaintiff arrived in Lafayette Park independently and at different time periods beginning in June, 1981. Although each plaintiff began and continues his/her presence individually, all plaintiffs attribute their actions to religious motives. Complaint, paras. 21 thru 23.
Plaintiffs' activities in the Park enjoy Constitutional protection (Ibid, paras. 23-25) and privilege under the existing provisions of the Code of Federal Regulations. Ibid, para. 6.
1/ At times defendants, their agents, or even plaintiffs have termed plaintiffs' activity a "vigil." Althoughplaintiffs would "prefer to maintain wakeful consciousness so as to increase (their) productivity" (e.g. Declaration of Sunrise In Support of the Complaint, para. 6), all plaintiffs admit intermittent sleep during the course of their presence. E.g. Declaration of Mary Huddle In Support of the Complaint, para. 17. A clever semanticist might still insist that a "vigil" must be a "wakeful presence." Thus the term "continuous presence" would be more accurate in describing the symbolic action here at issue. There is an established basis on which to gauge the "sleep" at issue here. SEE, 36 CFR 7.97 (I)(2). This Circuit has noted that:
"(I)n the unusual circumstances (of an individual demonstrator's round-the-clock vigil incidental) sleep which occurs during the course of the vigil must be considered sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance." (United States v. Stacy Abney, 534 F.2d 984 (1976).)
The Supreme Court has also commented on this issue:
"We need not disagree with the view of the Court of Appeals that sleeping in the context of demonstration is expressive activity which is protected to some extent by the First Amendment." (Clark v. CCNV, U.S. No. 82-l998, filed June 29, 1984, Majority Opinion footnote at 3.)
The government can attribute no injury to persons, property, or any substantial government interest as the result of plaintiffs' continuous presence in the park.
All plaintiffs have repeatedly made scrupulous good faith efforts to conduct all of their activities so as not to offend any regulation. Plaintiffs have doggedly sought information and guidance from defendants as to how they might maintain their continuous presence within the law. Although exempted from permit requirements (36 CFR 9.76(g)(2)(i)), each of the plaintiffs, with the exception of Mr. Galindez, has applied for and been granted National Park Service permits which specificly allow each of the actions, including sleep, in which plaintiffs engage. SEE, e.g., Complaint, Exhibits 3, 4 and 5, para. 10. Nonetheless plaintiffs have suffered repeated arrests -- resulting in very few convictions -- for mere allegations that they have committed some victimless infraction of one of the several petty regulations here at issue.
At the same time it is readily conceded that the Committee for the Presidential Inauguration enjoys Constitutional protection in its endeavors to exalt the image of the president. 2/
36 CFR Section 724 specifically provides that the Inaugural Committee may be granted permits for the use of public space, and
2/ Completely aside from the question of whether defendants have been motivated by a malicious intent to suppress plaintiffs constitutional rights to religious, communicative and assembly exercise (to preserve this claim plaintiffs incorporate by reference Complaint, paragraphs 20 and 70 thru 80), proceeding upon their Motion for Preliminary Injunction and Temporary Restraining Order plaintiffs merely allege that defendants have violated the First, Fifth, Ninth, and Fourteenth Amendments to the Constitution by causing or allowing plaintiffs to suffer harassment and prosecution, while blessing the Presidential Inaugural Committee, its members, employees, or hangerson with exemption from similar treatment under the identical regulations.
The National Park Service, and the Interior Department have explicitly stated that the "camping" regulation is intended "not to stifle First Amendment expression, but to protect undesignated areas from activities for which they are unsuited, or the impacts of which they cannot sustain." SEE Federal Register, June 4, 1982, Vol. 47, No. 108, p. 24301, cf. 36 CFR 9.76 (i)(2).
The government has actually prosecuted some of the plaintiffs, purportedly for violating the "camping" regulation, merely because they were covered with a sleeping bag and blanket in 32 degree temperatures. Despite the narrow interpretation required to stretch a sleeping bag and blanket into the crime of "living accommodations," defendants betray no difficulty in living with the blatant inequity of allowing the Presidential Inaugural Committee, its members, employees, friends, guests, or associates to inhabit Lafayette Park in a mobile home (with more mobile homes to come), in violation of this CFR Section.
Prohibits "the erection, placement or use of structures of
3/ Plaintiffs find no indication that Section 724 has ever been subjected to Administrative Procedure Act review. It also appears that 36 CFR Section 724 was promulgated by the Department of Interior on August 6, 1956, fully twenty-six years before the CFR regulations now at issue. In light of the "regulatory scheme" alleged at Complaint para. 20, there seems to arise a serious question as to whether the provisions of Section 724 have not been effectively nullified by the superceding regulations. Since it is not their desire to prevent the Presidential Inaugural gala, plaintiffs reserve this argument.
any kind (excepting E, F, and G below) in Lafayette Park."
Defendants have shown no compunction in enforcing this prohibition against plaintiffs (e.g. Amended Complaint, para. **). Through testimony and evidence plaintiffs will demonstrate that defendants intend to allow the Presidential Inaugural Committee, its members, employees, friends, guests, or associates to conduct a building boom in Lafayette Park between November, 1988 and February, 1989, in violation of this CFR Section.
Planned activities of the Presidential Inaugural Committee will violate each and every provision of this Section.
Likewise, planned activities of the Presidential Inaugural Committee will violate each and every provision of this Section.
In demonstrations with one hundred or more participants "a temporary speaker's platform as is reasonably required to serve the demonstration is allowed as long as such platform is being erected, dismantled or used, provided that only one speaker's platform is allowed per demonstrating group, and provided further that such speaker's platform is authorized by a permit...."
Although defendants have prevented plaintiffs from using a temporary speaker's platform as permitted under this Section (see, Original Complaint, para 58), upon experience and information, plaintiffs believe that defendants will allow the Presidential Inaugural Committee, its members, employees, friends, guests, or associates to erect and maintain numerous sound and video structures, which will not be immediately attended or used,
Plaintiffs have no experience or information to indicate that defendants are likely to utilize anything as modest as a "platform ... no larger than three (3) feet in length, three (3) feet in width, and three (3) feet in height." However it would be grossly inequitable to impose such stingy restrictions on plaintiffs if defendants allow the Presidential Inaugural Committee, its members, employees, friends, guests, or associates to erect and maintain numerous large platforms, for extended periods, in Lafayette Park, in violation of this CFR Section.
"For the purpose of this section the term `structure' includes props and displays, such as ... crates, ... theaters, ... furniture and furnishings, such as desks, chairs, tables, bookcases, cabinets, platforms, podiums; shelters, such as tents, boxes and other enclosures, wagons and carts; and all other similar types of property which might tend to harm park resources including aesthetic interests ...." This regulation has been applied, without probable cause, against plaintiffs (e.g. Original Complaint, para. 64). Plaintiffs have experience and information to support the likelihood that defendants will permit the Presidential Inaugural Committee, its members, employees, friends, guests, or associates to possess for extended periods such "structures" as crates, theaters, furniture and furnishings, such as desks, chairs, tables, bookcases, cabinets, platforms, podiums; shelters, such as tents, boxes and other enclosures,
This section places very exacting requirements on the possession and use of signs in Lafayette Park, and has been used, without probable cause, to inflict pain and suffering on plaintiffs (e.g., Original Complaint, para. 57). Upon experience and information plaintiffs believe that defendants will permit the Presidential Inaugural Committee, its members, employees, friends guests, or associates to utilize for extended periods "enclosure(s) of two (2) or more sides," which will "exceed a height of six (6) feet," which will "be arranged or combined in a manner so as to exceed the size limitations set forth in this paragraph," and which will not be "attended (by) an individual being within three (3) feet," in violation of this CFR Section.
Although plaintiffs are exempt from permit requirements, defendants have often bludgeoned plaintiffs with a document bearing the signature of defendant Sandra Alley and entitled "Additional Permit Conditions and Restrictions." Upon experience and information plaintiffs believe that defendants will permit the Presidential Inaugural Committee, its members, employees, friends guests, or associates to utilize portions of Lafayette Park for storage activities that will violate defendant Alley's "Additional Permit Conditions and Restrictions." It is plaintiffs' position that the document "Additional Permit Conditions
Various plaintiffs have been arrested by various of defendants' agents on various occasions, without probable cause, purportedly for violating this statute. William Thomas alone has been arrested and incarcerated at least twice (Complaint, para. 57, Amended Complaint, para. 25) for incidents which never received judicial review. Plaintiffs have no reason to believe that defendants intend to subject the Presidential Inaugural Committee, its members, employees, friends guests, or associates to similar treatment under this statute.
Plaintiffs never have, nor have they any intention of, moving mobile homes into Lafayette Park, erecting fences, tearing up sidewalks, gouging up grass, building quarter-million-dollar bleachers, or in any other manner causing physical damage similar to that which defendants will allow the Presidential Inaugural Committee, its members, employees, friends guests, or associates to inflict upon the park.
Plaintiffs assert that the Government will not be able to demonstrate any substantial interest in denying plaintiffs protection, equal to the protection enjoyed by the Presidential Inaugural Committee, its members, employees, friends guests, or associates against criminal prosecution under the regulations
In light of testimony and evidence, the pattern and practice under which the defendants have caused these regulations to be applied against plaintiffs will be seen to fall incredibly short of well-established legal criteria for regulating protected conduct. SEE, U.S. v. O'Brien, 39l U.S. 367.
From its very roots the form of Constitutional government envisioned by the framers of this nation recognized the compelling interest upon which plaintiffs now move for relief from this Court.
"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).
If "civil liberty" can be reasonably defined as "individual excellence and personal freedom," then defendants cannot quibble with the compelling interest of equal protection under law.
"I don't have to tell you that in today's world the existence of nuclear weapons could mean, if not the extinction of mankind, then surely the end of civilization as we know it.... (T)here is a threat posed to human freedom by the enormous power of the Modern State ... secret police, mindless bureaucracy, all combining to stifle individual excellence and personal freedom." (Address of President Reagan to a joint session of British Parliament, 6/8/82, Presidential Documents, June, 1982.)
The relief sought by plaintiffs is simple, and one to which they have well-established entitlement.
"(I)t must be noted that petitioner's presence was unquestionably lawful. It was a public facility, open to the public **** But there is another and sharper answer which is called for. We are here dealing with an aspect of a basic Constitutional right -- the right under the First and Fourteenth Amendments guaranteeing freedom of speech and of assembly and freedom to petition the Government for a redress of grievances**** As this Court has repeatedly stated, these rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to
protest by silent and reproachful presence in a place where the protestant has every right to be." Brown v. Louisana, 383 U.S. 131 (1961).
The rationale underpinning plaintiffs' entitlement is also well established.
"It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.... There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." Terminiello v. Chicago, 337 U.S. 4, 5 (1948).
Plaintiffs' claim that a discriminatory distinction has been drawn by the government and is evidenced by the fact that they have suffered harassment and prosecution for activities similar to, but, testimony and evidence will show, dwarfed by activities to be performed by the Presidential Inaugural Committee while defendants turn a blind eye.
"When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized. Carey v. Brown, 447 U.S. 455, 461-62 (1980).
Defendants can offer no plausible justification for the apparent distinction evidenced here. Plaintiffs' point derives from the public forum equality doctrine articulated by the Court in Police Department of Chicago v. Mosley, 408 U.S. __ (1972).
"Necessarily, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard." Police Department of Chicago v. Mosley, 408 U.S. 96 (1972).
Likewise, it has been determined that the government must
The Supreme Court has instructed that 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, l04 S.Ct. 2ll8 (1984).
Analogously, it is suggested that defendants' position amounts to persecuting plaintiffs for their de minimis whispering of "popcorn," while the government falsely yells "fire" in a crowded theater, through a bullhorn held by the National Park Service.
First Amendment exercise has been held 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.
Suppression of First Amendment exercise has been held to constitute "irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
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 not only
in their efforts to exercise their freedom of expression, but also by being denied equal protection of the law through a policy of selective, capricious, unjustifable regulatory enforcement. This will create not only a chilling effect on the exercise of their Constitutional rights, but will continue the pattern of emotional, often physical abuse to which plaintiffs have been subjected.
Third, the issuance of a Temporary Restraining Order will
not harm the defendants. It will simply maintain the status quo,
required in a democracy, which demands that the government be
subject to the same laws as its citizens.
Finally, the public interest clearly lies in compelling the
Government to abide by the law, as well as 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.)
Unless a strong ceiling is maintained by law, nothing will remain to prevent "executive privilege" from elevating itself to a state indistinguishable from the "divine right of kings," consequently dragging civilization back to the dark ages.
WHEREFORE palintiffs hereby pray the Court for a Preliminary Injunction, or Temporary Restraining Order, for the purpose of restraining Government defendants from subjecting plaintiffs to unnecessary abuse and regulatory harassment pending the resolution of the Complaint in this matter .
A proposed Order is attached.
________________________
Scott Galindez
Plaintiff, pro se
P.O. Box 27217
Washington, D.C. 20038
____________________________
Concepcion Picciotto,
Plaintiff, pro se
Post Office Box 4931
Washington, D.C. 20008
_____________________________
Philip Joseph, Pro Se
P.O. Box 27217
Washington, D.C. 20038
___________________________
Sunrise S. Harmony, pro se
P.O. Box 27217
Washington, D.C. 20038
_____________________________
William Thomas, pro se
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
202-462-0757
_____________________________
Ellen Thomas, pro se
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
202-462-0757