ML>USCA 94-1935

USCA 94-1935

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

   CONCEPCION PICCIOTTO, et al.
                Plaintiffs,

                V.                        Civil No. 94-1935 (CRR)


   THE UNITED STATES OF AMERICA,
                             et al.,
                Defendants.

MEMORANDUM OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE

APPEARANCES:

Ellen Thomas and William Thomas, pro se, for the Plaintiffs.

Eric H. Holder, United States Attorney, and Sally Rider, Assistant United States Attorney, for the Government.

On September 7, 1994, the Court received a Complaint for Declaratory and Injunctive Relief and an Application for an Expedited Temporary Restraining Order ("TRO") and Petition for Preliminary Injunction filed in Forma Pauperis by Plaintiffs Concepcion Picciotto, Ellen Thomas, and William Thomas. The Plaintiffs named as Defendants the United States of America, the United States Park Service, the United States Park Police, and the United States Secret Service. The Court held a hearing on that date which was continued until September 8, 1994, in light of the parties' representations that the matter might become moot by the evening of September 7, 1994.

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On September 8, 1994, the Court held a further hearing on the Plaintiffs' Complaint and Application for an Expedited TRO. The Complaint and TRO seek, in pertinent part, to enjoin the Defendants from closing any portion of Lafayette Park without complying with the provisions of 36 C.F.R. S 1.5, and from closing the southern sections of Lafayette Park to demonstrators and the general public. The Plaintiffs allege that on or about September 6, 1994, a U.S. Park Ranger hand-delivered a document entitled "Notice to the Public" to Ms. Thomas which advised her and others using the Park for demonstration purposes that the Park would be closed from Wednesday, September 7, at approximately 5 a.m. through Monday, September 12, at 3 p.m. See Exhibit A which is attached hereto and made a part hereof.

With this notice was a map of Lafayette Park showing a closure area which included all of the Park except for a large area in the northeast quadrant of the Park, and a small portion along Pennsylvania Avenue in the southeast quadrant of the Park, directly across from the White House. See Exhibit B which is attached hereto and made a part hereof. The notice further provided that persons demonstrating or otherwise using the Park should remove themselves and any personal property from these areas. The stated reason for this measure was to provide necessary security to the President of the United States.

Upon consideration of the Plaintiffs' Complaint and Application for a TRO, the Court determined that the Plaintiffs' First Amendment right to free speech was implicated because of the abrupt nature of the notice described above. The Court thus

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decided to conduct a hearing not only upon the Plaintiffs' application for a TRO, but to combine their request for a preliminary injunction with a hearing on the merits, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. This Memorandum Opinion and Order of even date shall constitute the Court's findings of fact and conclusions of law in this matter, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

At the hearing on September 8, 1994, Thomas F. Farrell, a Special Agent of the United States Secret Service Agency who is in charge of the White House Division, testified, among other things, that the limited closure of the Park was necessitated by concerns for the security and safety of the President and his family who had temporarily moved to the Blair House, the government-owned guest quarters across Pennsylvania Avenue, while work involving the removal of asbestos was being completed on the White House.

The Court noted that the question presented before it was whether the limited closure of Lafayette Park was a reasonable time, place and manner restriction on the conduct of those demonstrating in the Park, and others, in light of the particular security concerns posed by the First Family's temporary lodging at the Blair House. Upon consideration of the papers before the Court, the applicable law, the testimony of the witnesses, the exhibits received in evidence, and the parties' oral arguments, the Court finds that the restriction was reasonable and, accordingly, denies the Plaintiffs' Application for an Expedited TRO. Moreover, the Court finds that denial of the TRO is proper because there is

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no possibility that the Plaintiff can prevail on the merits. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977). It was undisputed that the President and his family had to move to the Blair House, and that the security of the First Family is of paramount importance. Under these particular circumstances, additional security measures were required to ensure the First Family's safe access from the Blair House to the White House, and to protect against any threats on the President' s life, particularly in light of the assassination attempt which occurred during late President Harry Truman's stay at the Blair House from 1948-1952. The Court finds that the closure of a limited portion of the Park, for a limited period of time, was a reasonable exercise of the discretionary powers of those charged with protecting the President and his family and do not warrant a Temporary Restraining Order under these particular circumstances. The Court further finds that the Defendants' actions were consistent with the Plaintiffs' First Amendment rights and with the requirements of 36 C.F.R. S 1.5, [1]

Upon consideration of the testimony of Mr. Farrell regarding the temporary nature of the Park's closure, the Court has

[1 This provision states that "Except in necessary situations a closure, designation, use or activity restriction which is of a nature, magnitude and duration that will result in a significant alternation in the public use pattern of the park[] ... shall be published as a rulemaking in the Federal Register." 36 C.F.R. S 1.5(a) (1993) (emphasis added). The Court finds that the Defendants' actions did not violate this provision because the closure of a limited area of the Park was temporary, because it did not significantly alter the public use pattern of the Park, and because it was done under an emergency situation.]

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determined that the case shall be dismissed, and in any event will be moot by its terms on Monday, September 12, 1994, when the Park is scheduled to return to its normal operation. The Court shall thus issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.

September 9, 1994

(signed) CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE