Plaintiffs' motion is, of course, to be judged against
the familiar four-part preliminary injunction standard prevalent
in this Circuit. Plaintiffs must demonstrate: (l) that they are
likely to succeed on the merits of their claims against the federal
defendants; (2) that irreparable harm will befall them in the
absence of relief; (3) that such injury outweighs any harm to
1
the federal defendants or others which might result from the
grant of the requested immediate injunctive relief; and (4) that
the public interest favors a grant of the requested relief. Wisconsin
Gas, Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); Washington
Metropolitan Area Transit Comm., v. Holiday Tours, Inc., 559
F.2d 841, 844 (D.C. Cir. 1977). A preliminary injunction is a
drastic and extraordinary form of relief that should not be granted
absent a clear and convincing showing by the moving party, Yakus
v. United States, 321 U.S. 414 (1944); Kahane v. Secretary
of State, 700 F.Supp. 1162, 1165 (D.D.C. 1988), and "[t]he
injury must be both certain and great; it must be actual and not
theoretical." Id.; Wisconsin Gas, 758 F.2d
at 674. Plaintiffs cannot meet this exacting standard and thus
their motion should be denied.
Turning first to plaintiff's irreparable harm argument,
it is clear that Picciotto will suffer no irreparable harm in
the absence of an injunction. Simply put, she has chosen the wrong
forum to challenge her potential criminal prosecution. Rather
than seek an injunction from this Court in this case, Picciotto
must wait and see whether she is criminally prosecuted and at
that time assert any infirmities with her criminal prosecution
in that criminal case. 1/
1/ We note, moreover, that at this writing the undersigned
do not know whether a criminal prosecution for the violations
at issue will be forthcoming.
- 2 -
The traditional rule at common law was that courts of equity
" had 'no jurisdiction over the prosecution, the punishment
or the pardon of crimes or misdemeanors' and therefore could not
enjoin criminal proceedings." Deaver v. Seymour, 822
F.2d 66, 68 (D.C. Cir. 1987), cert. denied, 108 S.Ct. 99 (1987),
quoting, In re Sawyer, 124 U.S. 200, 210 (1888). Although
the traditional rule has at times yielded cases where civil injunctions
were properly issued to restrain state criminal prosecutions'
the Court of Appeals for this Circuit recently noted that there
are no reported cases where "a federal court enjoined a federal
prosecutor's investigation or presentment of an indictment."
Deaver, 822 F.2d at 69. The rationale for the absence of
such cases is simple: a person prosecuted in federal court has
available to him or her Rule 12 (b) (1) of the Federal Rules of
Criminal Procedure, whereby he or she can challenge, after indictment
but before trial, any and all "defects in the institution
of the prosecution." Id. at 69-70. See also Juluke v.
Hodel, 811 F.2d 1553, 1556-57 (D.C. Cir. 1987). Thus, Picciotto's
remedy in challenging any prosecution is by moving to dismiss
that particular case--not by seeking a separate civil injunction
as she has here.
The facts of Deaver are instructive. In that case, the
plaintiff, a former White House Deputy Chief of Staff, sought
to challenge, by way of a civil action, the constitutionality
of the Independent Counsel statute prior to any criminal indictment.
The Court of Appeals affirmed Judge Jackson's denial of a preliminary
injunction, holding that rather than challenge the Independent
Counsel's authority pre-indictment in a civil action,
- 3 -
Deaver must await the criminal indictment and at that
time raise any challenges to the criminal prosecution by way of
the Federal Rules of Criminal Procedure. Id. at 69-70. The Court
held that requiring Deaver to follow this procedure did not constitute
irreparable harm, Id. at 68, and concluded by stating that (p]rospective
defendants cannot, by bringing ancillary equitable proceedings,
circumvent federal criminal procedure." Id. at 71.
The same conclusion is compelled in this case. Picciotto---and
the other plaintiffs--cannot use this civil action as a vehicle
to avoid criminal prosecution for violating various National Park
Service regulations. Accordingly, they will suffer no irreparable
harm by a denial of their motion.
Similarly, plaintiffs are not likely to succeed on the
merits. As the federal defendants have explained at length in
their previous submissions, the regulations at issue in this case--including
particularly the regulatory provisions at issue in plaintiffs'
latest motion--constitute valid time, place and manner restrictions
that have been upheld against constitutional challenge in several
contexts. Plaintiffs have advanced nothing in their latest motion
to support a conclusion to the contrary. In fact, it is quite
clear that Picciotto was, in fact, in violation of the regulations
at the time she was cited. See Declaration of Randolph J. Myers
and other exhibits attached hereto. As we have noted above, the
fact that Picciotto has challenged those regulations in a separate
civil case cannot serve as a basis for enjoining future arrests
and prosecutions for violating those provisions.
- 4 -
Plaintiffs also lose on the balance of hardships and the
public interest prongs of the preliminary injunction test. The
public will be harmed far greater than plaintiffs if an injunction
issues because, as we have previously argued, plaintiffs' "burden"
in complying-with the minimal restrictions imposed by the regulations
is-far outweighed by the goal of the regulations to promote and
protect the aesthetic value, public use, safety and resources
of Lafayette Park. A stay of any criminal prosecution of Picciotto
is thus, completely unwarranted.
Conclusion
For each of the foregoing reasons, the federal defendants
urge the Court to deny plaintiffs' latest Motion for Preliminary
Injunction. A proposed Order is attached for the Court's convenience.
Respectfully submitted,
/s/ Jay B. Stephens
JAY . STEP HENS, DC BAR #177840
United States Attorney
/s/ John D. Bates
JOHN D. BATES, DC BAR #934927
Assistant United States Attorney
/s/ Michael L. Martinez
MICHAEL L. MARTINEZ, DC BAR #347310
Assistant United States Attorney
- 5 -
CERTIFICATE OF SERVICE
I hereby certify that this 28 th day of June, 1990, I sent
one copy of the foregoing Federal Defendants, Opposition to Plaintiffs'
Motion for a Preliminary Injunction to Stay Criminal Prosecution
via first class U.S. mail to:
William Thomas
1440 N Street, N.W.
Apt. 410
Washington, D.C. 20038
Victor Long
Assistant Corporation Counsel
Third Floor District Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
/s/ Michael L. Martinez
MICHAEL L. MARTINEZ, DC BAR #347310
Assistant United States Attorney
Room 4810, Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-7161