CA NO. 99-2113

Washington, D.C August 6, 1999 5:40 p.m.



For the Plaintiff:

For the Defendant:


Court Reporter:
Official Court Reporter
Room 6806, U.S. Courthouse
Washington, D.C. 20001
(202) 273-0881

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription


THE DEPUTY CLERK: Civil Action Number 99-2113. Conception Picciotto vs the United States, et al.

Would counsel please please identify themselves and who they represent?

MR. JAFFE: Good evening, Your Honor. Eric Jaffe from the U.S. Attorney's office and Randy Myers from the National Park Service would appear on behalf of the defendants.

MR. THOMAS: Good evening. I'm William Thomas, Pro se. I'll be appearing on behalf of the plaintiffs.

THE COURT: All right. Before the court this afternoon is the plaintiff's, all proceedings pro se, as I understand it, for a temporary restraining order. I have read the complaint and the documents that are attached to it, and that's it. I'll hear your argument.

I'll first hear from you, Mr. Thomas, then I'll hear from either you, Mr. Myers or Mr. Jaffe, and then if you wish to be heard further, I'll hear from you some more.

MR. THOMAS: Thank you.

I'm here as an individual who is deeply concerned with freedom of thought and expression of assembly.

I am troubled by the Park Service's plan to handle the demonstrations in Lafayette Park that are scheduled for tomorrow, August the 7th. I think that they are unreasonable; therefore, capricious. I think that they stifle freedom of


expression and freedom of assembly and freedom of thought.

THE COURT: Mr. Thomas, let me make sure that I understand actually the facts. And I'm doing this so that I'm sure that I understand what your position is and what's happening.

I understand that you and perhaps two other people are engaged in what is described in the complaint as a 24-hour 365-day vigil expressing opposition to global nuclear warfare.

MR. THOMAS: That's close, yes. That's what it says I in the complaint.

THE COURT: Okay. I take it that the vigil of which you speak is one where one or more of the plaintiffs are physically present 24 hours a day.


THE COURT: And that as part of the vigil there are signs, and the signs are actually described in the complaint as 4 by 4 or 4 by 6. So 4 by 6 feet?

MR. THOMAS: They are 4 feet by 4 feet and then they are raised 2 feet off the ground which is what the regulations limit signs to.

THE COURT: Where are the signs as we speak?

MR. THOMAS: Well, if you look at the Exhibit Number 4.


MR. THOMAS: That's just simply the same as the Park

Service map that's Exhibit 2. I just blew it up to make it a little more, a little clearer, and the signs are indicated by those little dots adjacent to Pennsylvania Avenue there.

There are two immediately to the east of the easternmost walk that cuts through the center of the Park, and then there are two more directly in the center of the sidewalk there.

And I'd like to point out, if I may at this point, that those signs provide ample room for large trucks to pass on the sidewalk, so they don't present any sort of an impediment or obstruction to vehicular traffic or pedestrian traffic or anything else.

THE COURT: Okay. Go on. I just wanted to make sure that I understood.

And it is your desire to remain where you are with the signs where they are during the demonstration. As I understand it, two groups have permits to demonstrate on either side of Lafayette Park.

MR. THOMAS: Exactly, Your Honor. That's our desire, to stay there.

THE COURT: And it's the - well, the Government can
speak for itself.

MR. THOMAS: I'd like to point out, if I may, that each of the plaintiffs have submitted declarations indemnifying the Government against any personal injury that may happen to


us as a result of being in the wrong place at the wrong time, if that happens to be the case.

And also, we've promised not to impede either of the other demonstrations that are taking place there. I think that this is significant. And I guess this is the problem to the court.

There's a need to, I think, balance security and freedom. And if freedom gets the upper hand, then -- if security gets the upper hand, then there's no freedom left.

And in an open and free society there are risks. Personally, I am committed enough to the consents of freedom of expression and assembly that I'm willing to run personally whatever risk and not take the Government to task just for the right to remain in a public park. And as indicated in there, in the declarations that have been submitted by the other two defendants (sic), they share that opinion.

THE COURT: All right. Anything further?

MR. THOMAS: I think I'll just wait and see what the Government has to --oh, well, another thing I guess I'll point out is that the Park is isn't closed. Although the notice says it's closed, it's open, and it's been divided into two areas and these areas are surrounded by metal fences. So we actually have two pens here which will contain these competing groups. Personally, I don't feel aligned with either of them, but I'm willing to listen to both.

And the Park Service is offering to let us participate in one of the demonstrations, but apparently won't let us participate in the other demonstration. And I think that this is problematic.

THE COURT: Let me just say this. The way I read you l paper, and I have not read anything from the United States, it was that one of the demonstrations indicated that they had no objection to your setting up your sign in their quarter, and I have not heard one way or the other whether the other side felt the same way. So do you know something that I don't know?

MR. THOMAS: Well, I tried to contact the other side by phone, actually, the -- D.W. Hawk, he calls himself. Actually, his birth certificate identifies him as Andrew Greenbaum. He's, apparently, the leader of the -- and according to what I read in the Washington Post, he's the individual who got the permit for The Knights of Freedom demonstration.

And apparently from his web site I wouldn't be surprised if there aren't -- I would be surprised if there was more than a dozen people in that whole group. It seems from his web site, it seems like he is the Knights of Freedom.

THE COURT: As you pointed out, you said that most demonstrators want supporters and you said -- I think in your paper you say that you think that you probably would be welcome over there.

MR. THOMAS: I can't imagine why either side would want to exclude us. And that's the point, I think, of a public demonstration, and that I think is what's being thwarted by the Park Service's plan here. I think the idea of a public demonstration is not to have a private party.

The letter says that we can get entrance to this one public demonstration if we present the letter to the Park Police. This is like requiring invitations to go to a public demonstration. It sort of seems to defeat the whole purpose of what a public demonstration is supposed to be about. That's why I think it's not reasonable at all.

MR. JAFFE: Good evening, Your Honor.

To briefly provide the court with background as to what's going on here -

THE COURT: And you're Mr. Jaffe?

MR. JAFFE: Yes, Your Honor.

The Knights of Freedom Nationalist Party applied for and obtained a permit to demonstrate on a portion of Lafayette Park tomorrow.

Additionally, a group called Shalom International also applied for and obtained a permit to carry on a counterdemonstration occupying the other portion of Lafayette Park.

The Park Service has determined that it is important to maintain a certain level of security and safety while these demonstrations are taking place.

I understand that there also are a number of other events that are occurring throughout the mall area related to the demonstrations that are going to be occurring at Lafayette Park.

There additionally have been threats from certain other groups that they would react with physical violence or an attempt to disrupt the Knights of Freedom's demonstration.

There have been threats to displace or prevent the Knights of Freedom from occupying the space that they have obtained through the permit with the National Park Service.

At least partially motivated by the threats and the controversy that has been generated pursuant to this, the demonstration and the counterdemonstration, the Park Service is determined that a certain security check needs to take place prior to the demonstration which will necessitate those occupying the Park area to vacate the area for a brief period of six hours while the area is surveyed and for security reasons, and then will also need to limit subsequent access to the areas to the demonstrators who have obtained permits.

THE COURT: For how long would it be, should the court deny this motion for a temporary restraining order, would Mr. Thomas and Ms. Thomas and Mr. -- I can't pronounce -Picciotto, for how long would they not be permitted in this area?

MR. JAFFE: My understanding is that from 6 a.m. to

noon no one will be allowed in the area marked off to enable
the Park Service --

THE COURT: Six o'clock a.m.

MR. JAFFE: Until 12 noon. A six-hour period.

THE COURT: Just a second. Six a.m., what day?

MR. JAFFE: Tomorrow.

THE COURT: To 12 noon, which is August 7th.

MR. JAFFE: Yes. Six a.m. August 7th through noon
August 7th.

That's not to say that plaintiffs or anyone else cannot demonstrate in other areas. It is solely limiting the area delineated in the charts that have been provided to the court.

THE COURT: I understand that. But what you're saying is that -- at least, it is your understanding based upon your talks, I suppose, with the law enforcement authorities, that the time that this particular area you indicate is needed for a buffer zone is six hours. Is that right or not?

MR. JAFFE: Actually, that's not quite correct. Maybe I should have mentioned this at the start.

The Park Service has brought Mr. Sal Lauro, the acting commander of the Park Police officers, who is prepared to offer testimony regarding what's going to take place tomorrow and the security measures that are going to be implemented to the extent the court would like to hear from him.


Getting back to Your Honor's particular question. The six-hour period, from 6 a.m. to noon, will not provide the buffer zone, but will allow the Park Service, I believe in connection with MPD -- although I'm not certain of that -- to perform a security check of the area and make sure that the area is safe for the demonstrations to occur later. Then from 12 noon until, I believe it is 8 p.m. the area is somewhat restricted. However, as Your Honor correctly pointed out, Shalom International

THE COURT: The demonstrators and counterdemonstrators, does their permit indicate that's the period of time they have to demonstrate: 12 noon to 8 o'clock on August 7th?

MR. JAFFE: I believe so, Your Honor, if I could just have a second.

MR. MYERS: That's correct.

MR. JAFFE: That is correct, Your Honor.

As Your Honor also pointed out in conversations with Mr. Thomas, Shalom International has allowed, or offered to allow the plaintiffs to continue their demonstrations during the period of time while the demonstration or counterdemonstrations are going on within the area that they have been permitted.

As a result, if Your Honor looks at the exhibit that plaintiff referred to earlier, the signs that plaintiffs


presently maintain will be moved what I have been told roughly 20 to 30 feet from where they are.

Moreover, the Park Service has told plaintiffs they can maintain those signs in that area while the security check is going on so that the signs will not be taken out. Their message will continue to be conveyed. There's no limitation there for any period of time. It's a question of moving it 20 feet away.

The buffer zone to which Your Honor referred is the middle strip between the demonstration and the counterdemonstration which the Park Service has determined must be maintained for security and safety reasons during the course of the demonstrations.

With that background, turning to the plaintiffs' particular claim here for a TRO. It really becomes clear that the plaintiffs cannot succeed on any of the four prongs required in order to have a TRO issued.

As an initial matter, plaintiffs are not able to show any likelihood of success, nevertheless a substantial likelihood of success on the merits.

The Supreme Court has held that expression is subject to reasonable time, place and manner restrictions, and that l restrictions are allowable if they are done without reference to the content of the speech, they are narrowly tailored to a l significant governmental interest, and they allow alternate


channels of communication.

In the present instance all of those requirements clearly are met. The restrictions have no regard for the particular content and instead deal with a particular land area where certain activities need to be curtailed while a security check is done.

Clearly the restrictions are limited to the specific governmental interests in maintaining the security and safety not only of the plaintiffs, but also the demonstrators, counterdemonstrators and any other members of the public that happen to be in that area.

And further, it's unquestioned that alternate channels of communication remain. The plaintiffs are free to continue their demonstration outside of this particular area and, in fact, fairly close by for the six-hour period while the security check is performed.

Moreover, they can continue their demonstration 20 feet from where they presently do so for the the ensuing eight-hour period while the demonstration and counterdemonstration are ongoing.

That also ties into the question of whether the plaintiffs can demonstrate any actual harm if the TRO is denied and, obviously, they cannot since there is going to be no curtailment of their ability to demonstrate in very close proximity to where they are doing, so the signs as I noted will


be maintained throughout the period of time and they will be allowed to demonstrate very close by at all times and literally 20, 30 feet away for that eight-hour demonstration period.

On the other hand, the harm to the Government as well the public is significant here. The Park Service, obviously with a great expertise in security and handling situations, such as demonstrations that occur at places in the mall, has determined a level of security necessary to ensure the safety of all those involved in the demonstrations and those that will be nearby and possibly observing them.

To enter the TRO will severely curtail the Government's ability to maintain the level of security that it has already determined is necessary in order to maintain that level of safety. Obviously, that would jeopardize the Government's ability as well as the public's ability to remain safe should any of the security measures be limited in any way.

As I noted, Your Honor, we do have Mr. Lauro who would be willing to provide additional testimony if the court so desires. Other than that, I'd be happy to answer any particular questions.

THE COURT: All right.

MR. JAFFE: Thank you.

THE COURT: Mr. Thomas.

MR. THOMAS: Counsel referred to the O'Brien test. I think the prerequisite is to serve a substantial Government


interest. Of course, the Government is complaining that they have security concern. Again, I think that it's necessary to balance security against liberty.

THE COURT: Well, let me ask you. I understand the words. Do you doubt that there is a basis for having some security concern? As I understand it -

MR. THOMAS: I doubt that there is a basis for certain security concerns. I doubt, for example, that there is any basis for a concern about our signs or the property that we have in our immediate area.

I doubt that there is any concern that our being there will in any way interfere with any security check, either of ourselves and the things in our possession or of any other par of the Park.

I don't see -- I mean, on the one hand the Government is saying, "Well, all you have to do is go 20 feet over there and you can still demonstrate." But I don't see what reason there is for us to just go 20 feet over there. And, on the other hand, what if we want to go 20 feet over there?

Part of my dealing with people in the street in the marketplace of ideas is to listen to what other people are saying to me. I want to listen to what these people have to say, and I want to listen to what these people have to say.

Now, if I am free to just move my signs into this closed-in area over here, I'm not free to go to that closed-in


area over there. So I can hear what these people have to say, but I can't hear what those people have to say.

And I just don't see that there's any security concerns that are really being met by imposing that restriction on me.

Again, anything is possible. You run risks in a free country, but I'm willing to take those risks. And I don't think that there are any -- I don't think that our presence in the area where we have always been presents any valid security concerns. Perhaps, you know, the captain could explain some, but I'm at a loss to.

THE COURT: What do you think that he could explain?

MR. THOMAS: I don't have any idea. I mean, he might be able to come up with some reason that our presence in our present location is going to cause some valid security concern, but I'm at a loss to imagine what it might be.

So while there may be valid security concerns surrounding this event, I think that they are more than amply met by fencing off -- although I don't think this is the best way to do it. I think the best way to have handled this thing was just to have not issued two permits to two competing ideologies for the same place at the same time. That's one thing.

And another thing that I would like to mention because I think it's very important -

THE COURT: Do you think that that might have raised some First Amendment concerns by others?

MR. THOMAS: They do it all the time. It's part of the regulations, in fact, that the Park Service can deny a permit if it is likely to be some conflict as a result of it.

But on the other hand, recently, not too long ago, there were simultaneous demonstrations in Lafayette Park with pro and anti-Serbian groups, and although there were a few very minor -- very minor, no serious injuries or anything -- one person pushing another, that sort of thing, the police handled it very well and they didn't have to have large sections of the Park closed down and everything like they are doing here.

So I think that -- and the other thing that I wanted to point out is I didn't receive any notice of this until after four o'clock yesterday afternoon.

I'm not operating at my peak right now because I haven't been to sleep since I received this information. I'm not a lawyer and it took me a long time to prepare these papers.

And, I think that there's a problem when the Park Service -- because this didn't just happen, this demonstration. This didn't just come to their attention yesterday. They have been planning for it for quite a while. I don't know how long they've known about it, but I read it about it in the Washington Post over a month ago. So they've known about it

I'm sure longer than I have.

And 36 CFR Section 1.9 sets out certain prerequisites that the Park Service is supposed to meet before closing parks or parts of parks and they don't bother to do that.

Thirty-six hours before the thing is going to happen they come around and give me a piece of paper and say, Here, it's a done deal. And so it's very difficult for me to try to get any hearing on the matter because it doesn't give me much time to prepare.

So I think that this is another thing that the court should consider, is the manner in which the Park Service has engineered this closure.

THE COURT: Mr. Jaffe, do you want to respond to the last point Mr. Thomas makes? That is, that -- and part of his complaint is that there's been a violation of the regulations that governs the closing of public parks and parts of public parks. At least, that's Mr. Thomas's allegation. Do you want to respond to that?

MR. JAFFE: Certainly, Your Honor. Thank you.

First of all, I believe Mr. Thomas was referring to Section 1.5, although I think he noted 1.9, which I believe doesn't exist.

A review of the regulation in question demonstrates that the situation at hand is not one that is subject to the portion of the regulations cited in the plaintiff's complaint



This regulation deals with situations where there is a closure of a park space or a portion of a space which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the Park area; adversely affect the Park's natural, aesthetic, scenic or cultural values; require a long-term or significant modification in the resource management objectives of the unit or is of a highly-controversial nature, and then such publication in the Federal Register is required.

We are dealing with a short-term limited restriction in this case that in no way falls within something of the magnitude or duration contemplated by this particular regulation.

And I'll note for the court that similar challenges by this very plaintiff, that the Park Service similarly violated this regulation have been denied on three separate occasions by this very court on this -- at least in some of those instances on the very similar basis. That this regulation does not contemplate situations such as the one at hand with a much smaller magnitude of duration.

THE COURT: Do you have a specific knowledge of that of what you speak? That is, that there have been other judges who have considered the application of this section of the code to similar or analogous arguments by Mr. Thomas?


MR. JAFFE: I do, Your Honor. We could certainly provide the court with opinions where the issues were addressed.

I do not believe opinions have been published in West Publishing.

THE COURT: Do you have them?

MR. JAFFE: I have copies --

MR. MYERS: I have three copies for Your Honor's

THE COURT: I've just had some documents handed to me,
Mr. Thomas. All right. Go ahead.

MR. JAFFE: That's all I have, Your Honor, unless you have any questions.

THE COURT: Mr. Thomas, do you want to respond to --

MR. THOMAS: Briefly, Your Honor.

I think that there is significant public change here. As I pointed out in my complaint this has never happened before.

I was there the first time the Park was ever closed, which was in 1987 on Mr. Gorbachev's first visit. At that time I argued that it shouldn't be done. At that time the Government argued that there was concerns about visiting head of state.

Okay. I can -- I can't argue with that. I mean, at this point I can't argue about that. But there's something


different here. This isn't a visiting head of state. This is a public demonstration.

And the Government has never done anything like this before. That, I think, makes it significant, because they've never done this before. This is entirely new.

Additionally, I don't know whether you got a copy of this, but this is an order that came out of the hearing that we had on December 7, 1987, where Judge Oberdorfer at that time kind of split the difference. He was afraid to challenge the security claims -

THE COURT: I can assure you that Judge Oberdorfer was not afraid to do anything. I can assure you that.

MR. THOMAS: Let me rephrase that. He was a little reluctant to -- or perhaps it was just that again I didn't have enough time to put my case together and -- but, at any rate, at that time -- another thing is at that time the Government argued that this was an extraordinary event. It was probably never ever going to happen again.

At that time I argued that it was like letting the camel get his nose under the tent. You let him do it this time and mark my words, they are going to do it more and more frequently.

And just this year alone we are in the seventh month, the eighth month, starting into the eighth month, I believe there have been 18 Park closures just this month. And the


first one that ever happened in history didn't happen until 1987. So -- but now we are moving the envelope a little bit more. It's not -- well, the Government is moving the envelope a little bit more.

It's not just a visiting head of state that we're concerned about now, now we can close the Park for a demonstration. Didn't happen before. So this is a significant change in public usage, I think.

Would you like to see this? This is -- here the judge said that although they could -- although they could exclude us from the Park for short periods of time -- and these were short periods of time, this was like 15 minutes on these -- we had to leave our signs there. So, that was the compromise that was made in that case.

THE COURT: Mr. Thomas, at least on the face of it, it seems that the case that you handed me is the case that was handed to me by Mr. Thomas (sic), although you seem to have something else attached to it.

MR. THOMAS: That was originally attached to it.

THE COURT: It's a brief biography of Chairman D.W. Hawk. Who is he?

MR. THOMAS: Yes, that is something. That's Andy Greenbaum, the gentleman who holds the -

THE COURT: Does this go with it?

MR. THOMAS: No. He's the person -- that's off the


web site of the person who holds the permit for the Knight's of -

THE COURT: Freedom?

MR. THOMAS: Freedom.

THE COURT: The court will take the matter under advisement for 20 minutes, perhaps longer, but perhaps no more than 20 minutes, and I will come back and render my decision.

(Recess from 6:15 p.m. until 7:05 p.m.)

THE COURT: All right. The court has taken under advisement its decision, which of course is the motion, is a decision that will be a resolution of the plaintiff's motion for a temporary restraining order -- application for a temporary restraining order.

By this application plaintiffs seek a court order the would prohibit the National Park Service from forcing them to relocate their 24-hour-a-day 365-day-a-year vigil for the global elimination of nuclear weapons, one that has persisted since 1981, the court is told from an area located in Lafayette Park which the Park Service indicates that it needs and intends to use as a buffer zone between competing demonstrations in the Park: one on the left side of the park and the other on the -well, east and west side of the park. Plaintiffs say that to permit this relocation will trammel upon their First Amendment rights.

The court has considered the plaintiffs' arguments,


the ones made in their papers which expands upon what I have just said, as well as the statements of Mr. Thomas at this hearing as well as the arguments made in opposition to the application by representatives of the Government.

Having considered these arguments the court concludes that the application should be denied.

It is, of course, black letter law that in a legal proceeding seeking injunctive relief the party seeking such relief carries a very heavy burden, one of showing, among other things, that he or she is likely to prevail on the merits;

That he or she will suffer irreparable injury should the temporary restraining order or the injunctive relief not be granted;

And that the issuance of the injunctive order would not disserve the public interests.

The court is of the view that plaintiffs have not demonstrated, one, that they will suffer irreparable injury and, two, that issuance of this order would not disserve the public interests.

The bottom line is that the plaintiffs may maintain their vigil within 30 feet of where it is located at this very moment at all times.

Requiring plaintiff to move such a short distance for such a temporally-limited period of time, while implicating First Amendment concerns, in my view, this does so only barely.


And in the court's view the Park Service's action is consistent with the law which permits limited content neutral regulation of expression.

The court notes that other judges who have been faced with similar challenges by the plaintiffs in this suit have determined that plaintiffs' First Amendment rights have not been violated by portions of Lafayette Park.

Here, the court has reference to the cases of -- the names of the cases are Conception -- I'll spell the last name of this plaintiff -- P-i-c-c-i-o-t-t-o vs Donald Waddell, Civil Action Number 87-3290. This is a case that was decided by Judge Oberdorfer and one brought to the attention of the court by both the Government as well as Mr. Thomas.

The same plaintiff vs the United States, Civil Action Number 94-1935, a case decided by Judge Richey of this court.

And the same plaintiff vs Emanuel Juan, Civil Action 90-1261.

The court notes that each one of these cases, as I said, address similar issues. Obviously no case is the same, but some of the principles that are stated have applicability in each one of the cases and here, are all cases before the District Court.

It may very well be that this tolls the bell insofar as this court's decision right here right here and now will not -- will decide the case.


I must say that, you know, Mr. Thomas may wish to try to somehow take an appeal so that this can be decided by a higher court.

As I indicated, the other -- aside from believing that this, what I see as a relatively inconsequential move, requiring a movement of this vigil is not implicating or barely implicating First Amendment concerns, the court is of the view that it very well may, and probably would, disserve the public interest to issue this injunction.

First, the court simply does not believe that it has the competence to explore the fine points of what is reasonable to maintain peace and good order during these competing demonstrations.

The court does not have to blink at the reality that one of the demonstrators, I understand, is associated with the -- or is thought to be associated in some way with the KKK, and that there are very, very strong feelings against what that demonstration stands for by Shalom International, and indeed certainly on the public airways there's much talk about the potential for violence and disruption.

The court frankly believes that it should give a certain amount of deference to the police expertise in the areas. And I must say I simply don't believe that it's appropriate for the court to place very much stock in Mr. Thomas's assessment of what is or is not reasonable under


the circumstances, which is not to criticize him for making the points which he's made, but I believe that the court should give some deference to the police authorities.

The court has also considered the plaintiff's position that this action by the Park Service is in violation of 36 CFR Section 1.5.

I believe that the section of that section that is applicable is found in subsection(b), which states that -- and I just quote here -- that, except in emergency situations, a closure designation, use, or activity, restriction, or condition, or the termination or relaxed section of such which is of a nature, magnitude, and duration that will result in a significant alteration in the public use pattern of the Park area, adversely affect the Park's natural esthetic, scenic or cultural values require a long-term or significant modificatiomodification in the resource management objectives of the unit or is of a highly controversial nature shall be published as rule making in the Federal Register.

And the court is of the view that this situation is simply not covered by this section that would require this activity of the partial closing to be first published in the Federal Register.

For these reasons, the application for a temporary restraining order is denied.

Good day.

(Proceedings concluded at 7:16 p.m.)


I, EDWARD N. HAWKINS, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter.

Edward N. Hawkins, RMR