UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Concepcion Picciotto,
Post Office Box 4931
Washington, D.C. 20008
                                     C.A. 99-02113
Ellen Thomas, Plaintiff Pro Se       Judge Thomas P. Jackson 
1424 12th Street NW, 
Washington, DC 20005 
(202) 462-0757

William Thomas, Plaintiff pro se
1424 12th Street NW, 
Washington, DC 20005 
(202) 462-0757

           vs.

United States of America,

Bruce Babbitt
Department of Interior 
18th and C Street, N.W., 
Washington, D.C.,                            REQUEST FOR AN 
                                  EXPEDITED TEMPORARY RESTRAINING ORDER
Stan E. Lock,
Deputy Director, 
National Park Service
1100 Ohio Dr. SW
Washington, DC 20242, and

United States Park Police
1100 Ohio Dr. SW
Washington, DC 20242

COMPLAINT

JURISDICTION

1. 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

2. All named plaintiffs are adult human beings residing within the legal jurisdiction of the United States of America.

DEFENDANTS

3. The United States of America is the ultimate authority responsible for the actions herein alleged to be in violation of the Constitution of the United States of America.

4. Bruce Babbitt is the Secretary of the Department of Interior, sued in his official capacity.

5. Stan E. Lock is Deputy Director, National Park Service sued in his official capacity.

6. The United States Park Police is the agency vested with the authority to enforce the edict issued under the signature of Stan E. Lock, which gives rise to this complaint.

NATURE OF COMPLAINT

7. Plaintiffs have consistently maintained a 24-hour a day, 365 day a year vigil in Lafayette Park for the global elimination of nuclear weapons since 1981. Plaintiffs have four signs which are 4x4 feet wide and six feet high.

8. At approximately 3:00 p.m., August 5, 1999 a U.S. Park Ranger hand-delivered a document entitled "Notice To The Public" (hereinafter "the Notice") to defendant Concepcion Picciotto, William Thomas, Ellen Thomas, and their associates. Plaintiffs' Exhibit (hereinafter "Pls' Ex.") 1.
9. Defendants' "Notice" (Pls' Ex. 1) dictates:

"All of Lafayette Park and the White House sidewalk located on Pennsylvania Avenue will be closed to the public from 6:00 a.m. through 8:00 p.m. August 7, 1999. In addition, various adjacent streets and sidewalks under the District of Columbia's jurisdiction will be closed. A map illustrating the closed areas is identified on the reverse of this notice. (Pls' Ex 2).
"These parks will be closed to the public to provide security and ensure public safety during the demonstrations by the Knights of Freedom Nationalist Party and the Shalom International on August 7, 1999. The District of Columbia will also be closing adjacent public sidewalks and streets under their jurisdiction.
"Persons demonstrating or otherwise using Lafayette Park and the White House sidewalk should remove themselves and any personal property from the closed park areas by 6:00 a.m. August 7, 1999... "

10. "The Notice" fails to cite any statute, ordinance, regulation, or other provision of law which would require that "(p)ersons demonstrating ... should remove themselves and any personal property from the closed park areas by 6:00 a.m. August 7, 1999."

11. If enforced by the U.S. Park Police, or any other police agency under authority of Defendant United States of America, the Notice that "(p)ersons demonstrating ... should remove themselves and any personal property from the closed park areas by 6:00 a.m. August 7, 1999" will needlessly interrupt plaintiffs' 24-hour a day, 365 day a year vigil, 1 thereby depriving plaintiffs of rights, privileges, and immunities guaranteed plaintiffs under the First, Ninth, and Fourteenth Amendments of the Constitution, in violation of the Fifth Amendment.

_____________________

1 In pertinent part 36 CFR 7.96(g)(2)(i) provides:
"Demonstrations involving 25 persons or fewer may be held without a permit provided that ... the 25 person maximum under this provision ... will not unreasonably interfere with other demonstrations or special events."

FACTS

12. In pertinent part, 36 CFR §1.5 (3)(b) provides:

"Except in emergency situations a closure, designation, use or activity restriction or condition, or the termination ... which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the park area .... shall be published as rulemaking in the Federal Register." 2

13. Never in the entire history of this nation -- which is great to the degree that it is free -- has a police agency been permitted to close a portion of a federal park in prior restraint of expression, BECAUSE of a demonstration.

14. Accompanying the "The Notice" (Pls' Ex. 1 [supra 9]) was a letter (Pls' Ex. 3), signed by Stan E. Lock, which stated:

"Enclosed is the National Park Service's Notice, advising that all of Lafayette Park and the White House sidewalk located on Pennsylvania Avenue will be closed to the public from 6:00 a.m. through 8:00 p.m. August 7, 1999. (Pls' Exs. 1 & 2[supra 9) These parks are closed to the public to provide for security and ensure public safety during the permitted demonstrations by the Knights of Freedom Nationalist Party [for the eastern portion of Lafayette Park] and the Shalom International [for the western portion of Lafayette Park] on August 7, 1999. The center portion of Lafayette Park will be closed to all for use as a security buffer zone and police staging area.
"The organizer of the Shalom International, however, has informed the National Park Service that it has no objection if the three of you wish to continue your current demonstration activities within their permit area that is located within the western fenced portion of Lafayette Park. If you wish to avail yourselves of this opportunity, please move your personal property into the nearby western fenced portion of Lafayette Park no later than 6:00 a.m. August 7, 1999. Pursuant to this Notice, you must still remove yourselves from the closed park areas by 6:00 a.m. August 7, 1999. However, by presenting this letter to the United States Park Police, between noon and 3 p.m. you will be allowed back into the western fenced portion of Lafayette Park so that you may continue your activities in Shalom International's permit area. (Pls' Ex. 2)

____________________________________

2 To the best of plaintiffs' knowledge, notwithstanding the fact that defendants knew of the proposed demonstrations well in advance of August 5, 1999, no Notice was ever published in the Federal Register, and no other attempts were made prior to notify plaintiffs or any other segment of the public regarding the proposed closure.

"Finally, if you do not wish to avail yourself of this opportunity, then please remove yourselves and any personal property from the closed park areas from 6:00 a.m. through 8:00 p.m. August 7, 1999. In that regard, you are free to demonstrate in other non-closed nearby areas such as the Ellipse."

15. Here is an ipso facto situation where two groups have been granted Park Service permits -- Shalom International, on the west side, and the Knights of Freedom, on the east side -- to demonstrate opposing points of view. See, Pls' Ex. 4.

16. This dual use is perfectly consistent with the democratic concept of differing opinions being debated in the marketplace of ideas. However, there is no reason to preclude Plaintiffs' ideas from the same marketplace under the pretext of either grossly overblown concerns about (a) Plaintiffs' safety (infra, 21), or (b) the need to create a "buffer zone/police staging area." Infra, 22.

17. The problem arises when Defendants insist that Plaintiffs either, (a) "move (their) personal property into the nearby western fenced portion of Lafayette Park no later than 6:00 a.m. August 7, 1999," because:

"The organizer of the Shalom International ... has informed the National Park Service that it has no objection if the three of you wish to continue your current demonstration activities within their permit area that is located within the western fenced portion of Lafayette Park." (Supra, 14), or (b) "demonstrate in other non-closed nearby areas such as the Ellipse." Id.

18. Although there is every reason to believe that the Knights of Freedom organizers would also be more than happy to have Plaintiffs join their demonstration -- after all, the whole point of a public demonstration is to win supporters to the demonstrator's point of view. However, Defendants do not offer the option of allowing Plaintiffs to "continue (their) current demonstration activities within the() permit area that is located within the (eastern) fenced portion of Lafayette Park."

19. Defendants apparently contend that the approximately fifty foot wide strip of land between the Shalom International demonstration and the Knights of Freedom demonstration is necessary to provide "a security buffer zone and police staging area." Pls' Ex. 3.

20. There is no factual basis to support any significant government interest in requiring plaintiffs to "remove themselves (or) any personal property from the closed park areas between 6:00 a.m. and 8:00 p.m. August 7, 1999." Supra, 9.

21. First, each Plaintiff is willing to indemnify Defendants against any and all responsibility for any harm which might result to Plaintiffs or their property because of their presence in Lafayette Park on August 7, 1999, save such harm as may result from deliberate action by Defendants or their agents against Plaintiffs. Additionally, Plaintiffs promise not to impede either demonstration. See, Declarations of William Thomas, Ellen Thomas, and Concepcion Picciotto.

22. Second, as illustrated in Pls' Ex. 4, Plaintiffs' vigil sites -- indicated by the four small dots adjacent to Pennsylvania Avenue -- do not create any impediment to Defendants' use of the approximately fifty foot wide strip between the western and eastern demonstrations as a "buffer zone" and/or "police staging area." The two paths within the strip, which run north and south between Pennsylvania Avenue and H Street are each easily wide enough to accommodate police vehicles. Furthermore, Plaintiffs' vigil sites do not obstruct vehicle access to any sidewalk.

23. Although this is the first time in history that Lafayette Park has been "closed to the public" BECAUSE of a demonstration, on occasions in the past when portions of the Park were closed to "provide security for a visiting head of state," the Court of this District has ruled that although Plaintiffs might be excluded from the closed areas, their signs must be permitted to remain within the closed areas. See, Thomas, et. al. v. Hodel, et. al., CA 87-3290.

INJURY

Suppression of First Amendment exercise "even for short periods" 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, the Notice's mandate that Plaintiffs either join the Shalom International demonstration, or leave Lafayette Park would violate Plaintiffs' right to freely gather in a public park, in violation of the First and 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.

ALLEGATIONS

Plaintiffs submit that life in a free country has its' risks. In other words, "total security" necessarily stifles liberty. In this case Plaintiffs freely accept any potential risks to their persons or property which might result from their presence in a park populated by others with conflicting beliefs.
Plaintiffs' applaud Defendants' efforts to maintain public safety under arguably difficult circumstances, however, in light of the numerous precautions taken, even beyond fencing Lafayette Park into two distinct and separate areas, Defendants' demand that Plaintiffs either join the Shalom International demonstration or leave the Park amounts to nothing more than a capricious abuse of authority.

COUNT ONE

Incorporating by reference 8 and 12 Plaintiffs allege that Defendants' Notice violates the provisions of 36 CFR 1.5 (3)(b), and the Administrative Procedure Act.

COUNT TWO

Incorporating by reference 9 Plaintiffs allege Defendants' representation, "All of Lafayette Park and the White House sidewalk located on Pennsylvania Avenue will be closed to the public from 6:00 a.m. through 8:00 p.m. August 7, 1999," is simply not true. In fact, according to Defendants' own map (Pls' Ex. 2) and Stan Locke's letter (Pls' Ex. 3) the eastern section of the Park will be open to a public demonstration by the Knights of Freedom, while the western section of the Park will be open to a public demonstration by Shalom International.

COUNT THREE

Incorporating by reference 13 and 23 Plaintiffs allege that, while under certain circumstances there might arguably be grounds for closing portions of a Park for security concerns surrounding a visiting head of state, it is purely nonsensical to close a public park over concerns relating to a public demonstration, because to do so negates the very concept of a "public demonstration," in violation of the First, Ninth and Fourteen Amendments.

COUNT FOUR

Incorporating by reference 16, 17 and 18 Plaintiffs allege that Defendants' invitation for Plaintiffs' to join the demonstration on the west side of the Park, while concurrently barring them from entering the east side of the park amounts to a mandate by Defendants that Plaintiffs may associate with or promote certain ideas, but are prohibited similar transactions with competing ideas, in violation of the First, Ninth and Fourteen Amendments.

COUNT FIVE

Incorporating by reference 11, 16, 17, 18, and Counts Two and Four Plaintiffs allege that because the Park will, ipso facto, be open to two permitted public demonstrations, both of which would likely welcome Plaintiffs participation in their demonstration, but because Plaintiffs may not be firmly committed to the opinions expressed by either of the two demonstrations, and because Plaintiffs have precisely the same rights and authority (Footnote 1, supra) to conduct their own separate demonstration in the Park as permit the Shalom International and Knights of Freedom demonstrations, in violation of the First, Ninth and Fourteen Amendments./

COUNT SIX

Incorporating by reference 19-22 Plaintiffs allege that they present absolutely no threat to the security of anyone. Further Plaintiffs allege there is no reasonable grounds to infer that Plaintiffs will create any impediment to the use of the "buffer zone" as a "police staging area."

COUNT SEVEN

Incorporating by reference 1 - 23 Plaintiffs allege that if Defendants perceive a serious problem as a result of having simultaneous demonstrations by both Shalom International and the Knights of Freedom, rather that attempt to mitigate the problem with an illogical, capricious, legally deficient, democratically abhorrent blanket closure of a public park, the correct solution would have been for the National Park Service to simply have refused to permit simultaneous demonstrations in the same park.

PRAYER FOR RELIEF

WHEREFORE plaintiffs hereby pray the Court to issue a Preliminary Injunction for the purpose of restraining Government defendants from subjecting plaintiffs to deprivation of their constitutionally protected rights and privileges, and to enjoin the defendants from barring any individual from any portion of Lafayette Park without showing some substantial government interest to justify cause for such an exclusion.

Plaintiffs also request that the Court award them costs for this action.

A proposed Order is attached.

Respectfully submitted this 6th day of August, 1999,


_______________________________________
Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008

_______________________________________
Ellen Thomas, Plaintiff Pro Se 1424 12th Street NW,
Washington, DC 20005
(202) 462-0757

_______________________________________
William Thomas, Plaintiff pro se
1424 12th Street NW,
Washington, DC 20005
(202) 462-0757

 

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Concepcion Picciotto, et. al.                             
                                      C.A. 99-02113
          vs.                         Judge Thomas Pennfeild Jackson

United States of America, et. al.

Declaration of Plaintiff William Thomas

Under penalty of perjury, I hereby declare that the following is true and accurate.

1. I am a Plaintiff in the above entitled case.

2. I hereby indemnify defendants against any and all responsibility for any harm which might result to myself or my property because of my presence in Lafayette Park on August 7, 1999, save such harm as may result from deliberate action by Defendants or their agents to intentionally target myself without cause.

3. I promise not to impede either demonstration which will be occurring in Lafayette Park on August 7, 1999.

 

_______________________________________
William Thomas, Plaintiff pro se
1424 12th Street NW,
Washington, DC 20005
(202) 462-0757

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Concepcion Picciotto, et. al.                             
                                      C.A. 99-02113
          vs.                         Judge Thomas Pennfeild Jackson

United States of America, et. al.

Declaration of Plaintiff Ellen Thomas

Under penalty of perjury, I hereby declare that the following is true and accurate.

1. I am a Plaintiff in the above entitled case.

2. I hereby indemnify defendants against any and all responsibility for any harm which might result to myself or my property because of my presence in Lafayette Park on August 7, 1999, save such harm as may result from deliberate action by Defendants or their agents to intentionally target myself without cause.

3. I promise not to impede either demonstration which will be occurring in Lafayette Park on August 7, 1999.

___________________________
Ellen Thomas, Plaintiff Pro Se
1424 12th Street NW,
Washington, DC 20005
(202) 462-0757

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Concepcion Picciotto, et. al.                             
                                      C.A. 99-02113
          vs.                         Judge Thomas Pennfeild Jackson

United States of America, et. al.

Declaration of Plaintiff Concepcion Picciotto

Under penalty of perjury, I hereby declare that the following is true and accurate.

1. I am a Plaintiff in the above entitled case.

2. I hereby indemnify defendants against any and all responsibility for any harm which might result to myself or my property because of my presence in Lafayette Park on August 7, 1999, save such harm as may result from deliberate action by Defendants or their agents to intentionally target myself without cause.

3. I promise not to impede either demonstration which will be occurring in Lafayette Park on August 7, 1999.


_______________________________________
Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008