This Court should deny plaintiffs' motion without prejudice.
The flags were seized by the Park Police for two reasons: (1)
for use as evidence in a possible criminal proceeding; and (2)
because Picciotto displayed a consistent pattern of ignoring Park
Police directions to remove the flags from her signs. 2/
There can be no doubt that the Park Police were entitled to seize
Picciotto's flags in the first instance as evidence for any later
criminal proceeding.
1/ This factual recitation is drawn from plaintiffs'
and defendants' June submissions in this matter.
2/ Indeed, Picciotto admits defying the directions of
the Park Police in her September 18, 1990 declaration, wherein
she describes her replacement of the flags on her signs after
they were removed on two occasions by Park Police officers. See
Picciotto Declaration, 3-11.
- 2 -
Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294,
306-07 (1967). With such seizures there must, of course, be a
nexus between the property seized and the crime charged Id. at
307. Such a nexus was clearly present here since the property
seized--the flags--formed the very basis of the regulatory violation
charged--excessive sign size made so due to the attachment of
the flags to the signs.
Similarly, there can be no doubt that although ultimately
the property seized should be returned to the person from whom
it was seized, the Government is entitled to retain possession
as evidence for use at trial, and in some instances even later,
so long as it can establish a continuing interest in the property."
United States v. Francis, 646 F.2d 251, 263 (6th Cir. 1981),
cert. denied, 454 U.S. 1082 (1981); United States v. Hubbard,
650 F.2d 293, 303 n. 26 (D.C. Cir. 1980) ("Property lawfully
seized may be retained pending exhaustion of its utility in criminal
prosecution." United States v. Premises Known As 608 Taylor
Avenue, 584 F.2d 1297, 1302-03 (3d Cir. 1978).
Because a criminal proceeding against Picciotto for her
regulatory violation has not been concluded, Picciotto is currently
not entitled to a return of her property. Indeed, because, as
we understand it, the Criminal Division of the United States Attorney's
Office presently intends to proceed against Picciotto for her
June 13 violation, the Government may retain
- 3 -
the flags as evidence until after the forthcoming criminal
charges are concluded. 3/
Accordingly, plaintiffs, Motion for a Temporary Restraining
Order should be denied because they have not met the rigorous
standard applicable to such motions. Plaintiffs must show: (1)
that they are likely to succeed on the merits of their claims
against the defendants, (2) that irreparable harm will befall
them in the absence of relief; (3) that such injury outweighs
any harm to the 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). .' The injury must be both certain
and great; it must be actual and not theoretical." Kahane
v. Secretary of State, 700 F.Supp. 1162, 1165 (D.D.C. 1988);
Wisconsin Gas, 758 F.2d at 674.
As the foregoing has demonstrated, plaintiffs have not
shown a likelihood of success on the merits; the flags were properly
seized incident to the issuance of a criminal citation and are
being retained during the pendency of criminal proceedings.
3/ Picciotto was given a citation on June 13, 1990 that
did not list a court appearance date. On July 18, 1990, a notice
was sent to Picciotto that she was required to appear in Court
on August 15, 1990 at 9:30 a.m. Although we believe Picciotto
did not appear at the appointed date and time, the undersigned
are not completely sure that she failed to appear. In any case,
the Criminal Division of the United States Attorney's office intends
to issue another notice requiring Picciotto to appear in Court
in mid-October, 1990.
- 4 -
Similarly, plaintiffs have shown no irreparable harm. As
we stated in our opposition to plaintiffs, June attempt at immediate
injunctive relief: "Picciotto--and the other plaintiffs--cannot
use this civil action as a vehicle to avoid criminal prosecution
for violating various National Park Service regulations."
Defs' June 28, 1990 Memo. at 4. Their efforts to do so do not
-constitute irreparable harm
Plaintiffs also lose on the balance of hardships and the
public interest prongs of the immediate 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. Just as the earlier requested stay of criminal
proceedings was unwarranted, so too is plaintiffs' current request
to return the seized property prior to resolution of the criminal
proceedings.
Finally, plaintiffs, Petition for a Writ of Mandamus should
be denied. Mandamus is an extraordinary remedy that should be
granted only when: "(1) the plaintiff has a clear right to
relief; (2) the defendant has a clear duty to act; and (3) there
is no other adequate remedy available to plaintiff." Council
of the Blind v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983)(en
bane) 13th Regional Corporation v. U.S. Department of Interior,
654 F.2d 758, 760 (D.C. Cir. 1980). Since, as we have noted,
5
plaintiffs
have no "clear right to relief" at this juncture, plaintiffs'
petition should be denied.
Conclusion
For each of the foregoing reasons, defendants urge the
Court to deny plaintiffs' Motion for a Temporary Restraining Order
and Petition for Mandamus. A proposed Order is attached for the
Court's convenience.
Respectfully submitted,
/s/ Jay B. Stephens
JAY B. STEPENS, DC BAR #177840
United States Attorney
/s/ John D. Bates
JOHN D. BATES, DC #934927
Assistant United States Attorney
/s/ Michael L. Martinez
MICHAEL L. MARTINEZ, DC BAR #347310
Assistant United States Attorney
- 6 -
CERTIFICATE OF SERVICE
I hereby certify that this 24th day of September, 1990,
I sent one copy of the foregoing Federal Defendants' Opposition
to Plaintiffs' Motion for A Temporary Restraining Order and Petition
for Mandamus 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
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY HUDDLE, et al.,
Plaintiffs,
v. Civil Action No. 88-3130 JHG
RONALD WILSON REAGAN, et. al.,
Defendants.
ORDER
Upon consideration of the plaintiffs' Motion for A Temporary
Restraining Order and Petition for A Writ of Mandamus, the federal
defendants, opposition thereto and the entire record in
this matter, it is by the Court this day of 1990, hereby
ORDERED, that plaintiffs' motion and petition be and hereby
are DENIED.
UNITED STATES DISTRICT JUDGE
MICHAEL L. MARTINEZ
Assistant United States Attorney
Room 4810 Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001
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