v.                         Civ. Action No. 99-21 13 (TPJ)



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.


1. Mootness

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, page 11.

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.

2. Irreparable Injury

The Court determined plaintiffs had failed to satisfy the requirements for imposition of a Temporary Restraining Order ("TRO"). Specifically, the Court found,

"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 merit.

3. Defendants' "Expertise"

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,

"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."

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.

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 time.

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 police camp.

4. 36 C.F.R. §1.5 (b)

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
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.

5. Service of Process

Defendants correctly contend that,

"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."

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.

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' Exhibit 3).

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.

Dated: August 24, 1999

Respectfully submitted,

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


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 to

Eric M. Jaffe
Assistant United States Attorney
Judiciary Center Building, I 0th Floor
555 Fourth Street, N.W.
Washington, D.C. 20001


William Thomas