UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONCEPCION PICCIOTTO, et al.,
v. Civ. Action No. 99-21 13 (TPJ)
UNITED STATES OF AMRICA, et al.,
PLAINTIFFS' MEMORANDUM IN OPPOSITION TO
DEFENDANTS' MOTION TO DISMISS
On August 6, 1999, Plaintiffs filed their Complaint in
this matter. In their Complaint, Plaintiffs challenge certain
restrictions limiting their access to Lafayette Park for a "brief
period of time" on August 7, 1999. Plaintiffs also filed
on August 6 a Motion for a Temporary Restraining Order, which
sought to prevent Defendants from imposing these limited restrictions
on August 7. After hearing argument on August 6, the Court denied
the Plaintiffs' Motion.
To safeguard the principle of meaningful access to the
courts, for the reasons more fully stated below, Plaintiffs hereby
oppose Defendants' Motion to Dismiss.
Citing the "'cases' or 'controversies'," clause
of the United States Constitution (U S. Const. Art. III, §§
I and 2) Defendants argue, "because the date on which the
challenged restrictions were imposed has passed, plaintiffs' claims
in this matter now are moot. Accordingly, plaintiffs' Complaint
should be dismissed."
Despite the fact that the August 7 demonstration has passed,
Plaintiffs prayed 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 defendants from barring any individual from any portion
of Lafayette Park without showing some substantial government
interest to justify cause for such an exclusion." Complaint,
Notwithstanding the well-established nature of Article
III, plaintiffs contend that this case falls within that narrow
but important category of cases which are "capable of repetition,
yet evading review." E.,g., Roe v. Wade, 410 U.S.
113, 125 (1973); Dombrowski v. Pfister, 380 U.S. 482 (1965).
At the hearing counsel for defendants went to great lengths to
point out that plaintiffs have brought similar challenges to previous
arguably paranoid security actions. Plaintiffs submit the record
shows that those previous challenges -- through the expedient,
as in the present case, of avoiding any fact finding process --
have all ended as "moot." Because those issues continue
to be repeated, yet evade factual review, these issues do not
fall under Article III.
Plaintiffs suggest that the Court should order a hearing
on their request of a Preliminary Injunction to fully resolve
the factual issues remaining in the wake of the August 6 hearing
and the August 7 demonstration.
The Court determined plaintiffs had failed to satisfy the
requirements for imposition of a Temporary Restraining Order ("TRO").
Specifically, the Court found,
2. Irreparable Injury
"plaintiffs have not demonstrated that they will suffer
irreparable injury because it appears that plaintiffs are able
to maintain their vigil in Lafayette Park within 30 feet of its
customary location. Requiring plaintiffs to move such a short
distance for a short period of time (approximately 18 hours)
only minimally implicates First Amendment concerns and does no
violence to legal principles which permit limited content neutral
regulation of expression." Parentheses in original.
(A) "Brief Periods of Time"
Both the Court and Defendants refer to the disruption of Plaintiffs'
demonstration in terms of a "brief period of time."
Plaintiffs believe that is a mischaracterization. Alternatively,
Plaintiffs believe, there should be a specific judicial opinion
concerning the precise duration of a "brief period of time.
In light of previous case law, suppression of First Amendment
exercise for even brief periods of time constitutes "irreparable
injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). Given
this consideration, it is disappointing to think that courts apparently
no longer hold to the realization that, to survive, free expression
requires protection against unreasonable official force. A "minimal"
unreasonable implication of First Amendment rights, even under
the pretext of "content neutral regulation," does gross
violence to the legal principles underpinning free expression.
At the hearing on August 6th Plaintiffs pointed out that
the very first blanket closure of Lafayette Park did not occur
until 1987. They also pointed out that in 1987 the government
claimed the closure was due to extraordinary circumstances, and
that the "closure" was for a duration of ten to fifteen
minutes. Having witnessed the growth of a "brief period of
time," from ten or fifteen minutes to "approximately
18 hours" one wonders at what point in time a "brief
period" finally becomes less than brief.
Unfortunately, the Court's supposition that "plaintiffs
are able to maintain their vigil in Lafayette Park within 30 feet
of its customary location. Requiring plaintiffs to move such a
short distance for a short period of time (approximately 18 hours)
only minimally implicates First Amendment concerns," turned
out to be less than factually accurate.
After the nazi non-demonstration failed to materialize,
one solitary Nazi, named Esyededeea Aesfyza (aka, Zeus) managed
to move into Concepcion's "customary location," where
he remains until this date. Clearly this honorable Court was mistaken
in assuming that "plaintiffs (would be) able to maintain
their vigil in Lafayette Park (in) its customary location."
In light of the fact that Mr. Aesfyza is presently occupying the
"customary location" of Plaintiff Concepcion Picciotto's
demonstration, Defendants' argument with regard to Plaintiffs'
"customary location" (i.e., "plaintiffs' stake
in this litigation no longer exists. and no relief could be granted
to them. " Defts' Motion to Dismiss, Memo. page 3) is without
(B) IN FACT
At the August 6th hearing Plaintiffs asserted that they
would be "very surprised" if a dozen Nazis showed up.
Therefore, Plaintiffs contended, Defendants' security plans were
way out of touch with reality. History shows that far fewer than
a dozen Nazis showed up, and, in fact, there was no demonstration.
Plaintiffs believe the record of the August 6 hearing shows it
was Plaintiffs' assessment of the security precautions in connection
with the August 7 demonstration which was correct, while Defendants'
assessment was way overblown. However, the Court ruled,
3. Defendants' "Expertise"
At the hearing Defendants noted that a "security expert"
was present in the courtroom. Plaintiffs suggested the Court should
question the alleged security expert with respect to quires the
Court was putting to Plaintiff. The Court heard no testimony whatsoever
from any official with "expertise." Thus, it seems,
that rather than "defer somewhat" to evidence articulated
by any official with expertise, the Court actually relied solely
on the assertions of Defendants' counsel.
Media reports have since quoted Mayor Williams and DC Police
Chief Ramsey as putting the cost of the non-event at well over
half a million dollars. If Plaintiffs, with nothing more than
access to the internet, were able to so much more accurately predict
the outcome of the August 7 demonstration than were Defendants'
combined troop of "security experts," it would follow
that the public interest would be better served if (a) the security
experts worked a little more thoughtfully, or (b) there existed
some process to check police excess beyond simply deferring somewhat
to the untested fears of official expertise.
"Plaintiffs also have failed to show that preventing
the Park Service from creating and securing a buffer zone between
the permitted demonstrations--a zone free of the presence of
anyone but law enforcement personnel-- would serve the public
interest. 1/ In this regard, the court believes that it should
defer somewhat to the judgment of officials who have expertise
in the handling of potentially volatile demonstrations and who
have concluded that a secure buffer zone is a prudent and necessary
way to ensure public safety and good order."
1/ At the hearing, Plaintiffs contended that if indeed the National
Park Service (NPS) had legitimate concerns about "establishing
security precautions in connection with the August 7 demonstrations,"
it was the NPS which had created those concerns by issuing permits
to two competing demonstrations, in one location, at the same
With all due respect, it is precisely the type of non-fact-finding
conducted on August 6 which permits the repetitious issues here
presented to consistently evade review, subsequently contributing
to converting what was once a free country into a paranoid armed
In oral argument on August 6, Plaintiffs explained that
they had not received notice of Defendants' park closure scheme
until late on the afternoon of August 5. Plaintiffs additionally
4. 36 C.F.R. §1.5 (b)
explained how difficult it was for them to prepare for a meaningful
court appearance on such short notice.
In their complaint plaintiffs alleged that the Park Services'
actions violate 36 C.F.R. §1.5 (b). This provision states
that "[e]xcept in emergency situations, a closure, designation,
use or activity restriction . . . which is of a nature, magnitude
and duration that will result in a significant alteration in the
public use pattern of the park  . . . shall published as a rule
making in the federal register." 36 C.F.R. §1.5 (b)
(1993). After the hearing the Court ruled,
"It is apparent that defendants' actions will not
violate this provision because the closure of a limited area
of the Park will be temporary and will not significantly alter
the Park's public use pattern."
The Court's ruled adversely to Plaintiffs on this point
despite Plaintiffs' uncontested representations that (1) the closure
did not constitute an "emergency situation," as Defendants
had ample notice of the proposed demonstration to enable them
to comply with the provisions of 36 C.F.R. §1.5 (b), (2)
the closure was not "of a limited area of the Park,"
but a closure of the entire Park, (3) the Park wasn't actually
"closed," because two public demonstrations were scheduled
to be staged in the Park during the period that the Park was supposedly
"closed," (4) this closure marked the first time in
the nation's history that the Park had been closed BECAUSE of
a public demonstration, and (5) the closure would "significantly
alter the Park's public use pattern," because "public
demonstrations" had previously always been "public,"
2/ thus, closing the Park because of a public demonstration
would be a significant alteration in the publics use of the Park.
In retrospect, perhaps, the Court will realize that the
intent of 36 C.F.R. §1.5 (b) was to insure that those with
potentially valid objections to proposed Park closures would have
adequate opportunity to challenge proposed Park closures through
meaningful access to the judicial process.
Defendants correctly contend that,
5. Service of Process
Plaintiffs have provided all Defendants with copies of
all documents filed as of August 6, 1999. Plaintiffs have not
as yet served Defendants, or the United States Attorney's Office
with a summons. However, Plaintiffs have not done so because they
do not know when, or if, the Court will grant a Preliminary Injunction
hearing. Without knowledge of when or if the Court will conduct
a Preliminary Injunction hearing, Plaintiff's do not know what
date to put on the summons.
"Plaintiffs ... have not effected proper service on,
possibly among others, the United States Attorneys Office as
required by Fed. R. Civ. P. 4(i). Thus, pursuant to Fed. R. Civ.
P. 12(b)(5), this provides an additional ground for dismissal
of plaintiffs' Complaint."
2/ Plaintiffs noted that they had been authorized by the
NPS to participate in one demonstration, but were apparently forbidden
to participate in the other demonstration. (Complaint, Plaintiffs'
While Fed. R. Civ. P. 12(b)(5), may provide grounds for
dismissal of plaintiffs' Complaint, Plaintiffs believe that the
Court may avoid this pitfall by setting a date for a Preliminary
Injunction hearing, and ordering Plaintiffs to serve Defendants
with notice of the appropriate date.
For the foregoing reasons, Plaintiffs respectfully request
that the Court deny Defendants' Motion to Dismiss and set date
for a Preliminary Injunction hearing.
CERTIFICATE OF SERVICE
Dated: August 24, 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
William Thomas, Plaintiff pro se
1424 12th Street NW,
Washington, DC 20005
I hereby certify that, on this 24th day of August, 1999, I
sent a copy of the foregoing Plaintiffs' Opposition to Defendants'
Motion to Dismiss, via first class U.S. mail, postage prepaid
Eric M. Jaffe
Assistant United States Attorney
Judiciary Center Building, I 0th Floor
555 Fourth Street, N.W.
Washington, D.C. 20001