UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONCEPCION PICCIOTTO, et al.,
v. Civ. Action No. 99-2113 (TPJ)
UNITED STATES OF AMERICA, et al.,
PLAINTIFFS' RESPONSE TO
DEFENDANTS' REPLY TO PLAINTIFFS' MEMORANDUM
IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
Defendants have moved the Court to dismiss this action
on the grounds that plaintiffs' claims are moot, and defendants
were not properly served. However, the claims raised in Plaintiffs'
Complaint are still viable, and plaintiffs have effected proper
service on the defendants. Therefore, the Court should deny defendants'
motion to dismiss this matter.
I. Service of Process
Defendants contend plaintiffs' Complaint should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(5), arguing, "Plaintiffs
assert that they have not properly served the defendants because
they do not know when, or if, the Court will conduct a preliminary
injunction hearing ... the lack of a hearing date for such a motion
does not justify plaintiffs' failure to properly serve defendants
with process. See Defendants' Reply to Plaintiffs' Memorandum
in Opposition to Defendants' Motion to Dismiss ("Defendants'
Reply") at 7, n. 2.
Actually, plaintiffs have perfected service of process.
Copies of the Complaint and Summons were hand-delivered to the
US Attorney's office, and the US Park Police, and sent by certified
mail to Secretary Babbit, Stan E. Lock, and Assistant US Attorney
Plaintiffs would agree the lack of a preliminary injunction
hearing date would not, in itself, justify a failure to properly
serve defendants with process. However, plaintiffs contention
is that their failure to effect proper service on the day of the
TRO hearing highlights one of the problems generated by defendants'
challenged park closure policy. As plaintiff William Thomas observed
at the TRO hearing:
"I'm not operating at my peak right now because I haven't
been to sleep since I received [the Park Closure Notice, on August
5, 1999]. I'm not a lawyer and it took me a long time to prepare
"[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. I don't know how
long they've known about it, but I read about it in the Washington
Post over a month ago. So they've known about it I'm sure longer
than I have.
"() 36 CFR Section 1. 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." Tr. pgs. 16 - 17.
Notwithstanding defendants' eloquent arguments, the factual
(1) plaintiffs did not receive notification of the closure
until late in the afternoon of August 5th;
(2) not being attorneys, or set up for producing legal
documents, despite their best efforts plaintiffs were unable to
deliver their Complaint to the Clerk's Office until approximately
3:00 p.m. on August 6th;
(3) the Complaint was not filed by the Clerk until about
5:00 p.m.. As required by Local Rule 205, all defendants were
served with copies of all papers filed in the case; 1/
(4) However, plaintiffs were forced to dispatch their messenger
at approximately 4:00 p.m., in order to serve a copy of the Complaint,
pursuant to the requirements of Rule 205, on all defendants before
their offices closed. Since the Complaint wasn't filed until 5:00
p.m., the summonses accompanying the papers served on August 6th
had not been signed or date stamped by the Clerk. 1/
Nonetheless, plaintiffs have since effected proper service.
Defendants -- all federal officials, sued in their official capacity
-- have suffered no prejudice as a result of the delay in service
of process; as reflected by the record they have all been ably
represented by the US Attorney's office. Therefore the Court should
deny defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(5).
1/ Plaintiffs will submit an Affidavit attesting to
the August 6th service of the papers at the scheduled hearing
on September 30, 1999.
II. Judicial Background
(a) Quintessential Issues, Minimal Scrutiny
As Judge Kennedy noted, the instant matter marks the fourth
time plaintiffs have sought "to address similar issues."
Tr. pg. 24.
Although various judges in this District and Circuit regularly
pay lip-service to free speech and the First Amendment, 2/
no judge has yet been willing to subject plaintiffs' various park
closure challenges to more than minimal scrutiny. Indeed, in the
instant case "minimal" is an overstatement as there
was absolutely no factual scrutiny.
When the Court questioned plaintiff with regard to security
concerns (id. pg.14), plaintiff suggested that the Court address
those questions to defendants' alleged security expert, who was
"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..." See Defendants' Exhibit
2, Picciotto v. United States, USDC 94-1935, slip op,
Sept. 9, 1994, pg. 3.
present in the courtroom. Id. pgs. 15. Judge Kennedy held, "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," and "(t)he court ... should give a
certain amount of deference to the police expertise in the areas."
Tr. pg. 25.
2/ "When government bans stationary demonstrators
from one section of a uniquely important public forum, it has
obviously burdened their speech rights." White House Vigil
for ERA Committee v. Clark, ("ERA") 746 F.2d 1518,
1552 (D.C. Cir. 1984). The Circuit Court has often noted that
there are few places where the contours of Amendment protections
are as clear as in Lafayette Park -- deemed for many years to
be "a quintessential public forum," ERA, at 1526-27,
"like Hyde Park in London ... a primary assembly point for
First Amendment activity," United States v. Doe, 968 F.2d
86, 89 (D.C. Cir. 1992). And see, A Quaker Action Group v.
Morton, 516 F.2d 717, 724 (D.C. Cir. 1974) ("the White
House sidewalk [and] Lafayette Park ... constitute a unique situs
for the exercise of First Amendment rights"). Accordingly,
"the government's ability to permissibly restrict expressive
conduct [there] is very limited." Doe, 968 F.2d at 88, citing
United States v. Grace, 461 U.S. 171, 177 (1983).
Moreover, despite the fact that he heard no testimony from
any "police authorities," Judge Kennedy held, "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 (). I believe
the court should give some deference to the police authorities."
Tr. pgs. 25, 26. As things turned out, Mr. Thomas's security assessment
actually proved to be the more accurate one, while that of the
police authorities was shown to be an extremely expensive over-reaction.
At the hearing the Court heard absolutely no factual evidence.
Thus, it seems fair to say, there was no factual scrutiny. Such
a low level of judicial review is not in keeping with the importance
of the issues involved. 3/
It is firmly established that a significant impairment
of First Amendment rights must
survive exacting scrutiny. Buckley v. Valeo, 424 U.S.,
at 64-65; NAACP v. Alabama, 357 U.S. 449, 460-461 (1958).
"This type of scrutiny is necessary even if any deterrent
effect on the exercise of First Amendment rights arises, not through
direct government action, but indirectly as an unintended but
inevitable result of the government's conduct . . . ." Buckley
v. Valeo, supra, at 65. Thus encroachment "cannot
be justified upon a mere showing of a legitimate state interest."
Kusper v. Pontikes, 414 U.S., at 58. The interest advanced
must be paramount, one of vital importance, and the burden is
on the government to show the existence of such an interest. Buckley
v. Valeo, supra, at 94; Williams v. Rhodes, 393 U.S., at
31-33; NAACP v. Button, 371 U.S. 415, 438, 444 (1963);
Bates v. Little Rock, 361 U.S. 516, 524 (1960); NAACP
v. Alabama, supra, at 464-466; Thomas v. Collins,
323 U.S. 516, 530 (1945).
3/ "The First Amendment requires the Government
to justify every instance of abridgement. That requirement stems
from our oft-stated recognition that the First Amendment was designed
to secure "the widest possible dissemination of information
from diverse and antagonistic sources," Associated Press
v. United States, 326 U. S. 1, 20 (1945), and to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States,
354 U. S. 466, 484 (1957). See also Buckley v. Valeo,
421 U. S. 1, 49 (1976); New York Times Co. v. Sullivan,
356 U. S. 254, 266 (1964); Whitney v. California, 274 U.
S. 357, 375-378 (1927) (Brandeis, J., concurring) ... If the Government
cannot adequately justify abridgment of protected expression,
there is no reason why citizens should be prevented from exercising
the first of the rights safeguarded by our Bill of Rights."
Clark v. Community for Creative Non-Violence, 468 U.S.
288, ___ (1984)(Brennen, J. dissenting).
In this particular case the Park Service had available
a far less restrictive, and far less expensive method of assuring
public safety. Rather than engineering a complicated, police-intensive
Park "closure" (see Tr. pg. 5), the Park Service could
merely have declined to issue permits for the same location to
two groups with fiercely competing ideologies. At the August 6
hearing Judge Kennedy questioned whether that option would not
raise First Amendment concerns. Tr. pgs. 15, 16. As is clear from
Defendants' Exhibit 1, pg. 6, plaintiffs' response -- "the
Park Service can deny a permit if it is likely to be some conflict
as a result of it" (Tr. pg. 16) -- to Judge Kennedy's question
was correct. See 36 CFR § 7.96 (g)(4)(iii), 36 CFR §
7.96 (g)(4)(iii)(A), 36 CFR § 7.96 (g)(4)(iii)(B).
(b) Preliminary Injunction
Plaintiffs respectfully submit that Judge Kennedy must
be incorrect in suggesting that the Court lacks "the competence
to explore the fine points" of security expertise. Understandably
the Court might not be in a position to explore the "fine
points" at a TRO hearing, however unless there exists some
process by which the Court can scrutinize police authorities,
then it would certainly appear as if those authorities were entirely
beyond reach of the legal process.
"Government agencies by their very nature are driven
to overregulate public forums to the detriment of First Amendment
rights, () facial viewpoint-neutrality is no shield against unnecessary
restrictions, and () in this case in particular there was evidence
readily available that should have impelled the Court to subject
the Government's restrictive policy to something more than minimal
scrutiny." Clark v. Community for Creative Non-Violence,
468 U.S. 288, ___ (1984)(Brennen, J. dissenting).
In order to sidestep a preliminary injunction hearing,
defendants urge the Court to just ignore the issue. "Contrary
to plaintiffs' assertion, and certain references in the materials
accompanying plaintiffs' Complaint and Motion for a Temporary
Restraining Order, plaintiffs do
not appear to have filed a petition for a preliminary injunction."
See Defendants' Reply at 7, n. 2.
Again, reasonable notice of the Park closure, as plaintiffs assert
was envisioned by 36 CFR 1.5(b), 4/ would have given them
time to better prepare their papers. Still, plaintiffs' hastily-prepared
complaint did specifically "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...." See,
Complaint, pgs. 1 & 11.
Moreover, plaintiffs' intention to seek a preliminary injunction
was clear enough so that the Court Clerk was able to identify
plaintiffs' filing as: "DECK TYPE: TRO/Preliminary Injunction."
4/ In pertinent part, Sec. 1.5 "Closures and public
use limits," provides:
"(b) Except in emergency situations, a closure, designation,
use or activity restriction or condition, or the termination or
relaxation 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,
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, shall be published as rulemaking in the Federal Register.
"(c) Except in emergency situations, prior to implementing
or terminating a restriction, condition, public use limit or closure,
the superintendent shall prepare a written determination justifying
the action. That determination shall set forth the reason(s) the
restriction, condition, public use limit or closure authorized
by paragraph (a) has been established, and an explanation of why
less restrictive measures will not suffice, or in the case of
a termination of a restriction, condition, public use limit or
closure previously established under paragraph (a), a determination
as to why the restriction is no longer necessary and a finding
that the termination will not adversely impact park resources.
This determination shall be available to the public upon request.
"(e) Except in emergency situations, the public will
be informed of closures, designations, and use or activity restrictions
or conditions, visiting hours, public use limits, public use limit
procedures, and the termination or relaxation of such, in accordance
with Sec. 1.7 of this chapter."
(c) Capable of Repetition Yet Evading Review
Just in case, it would seem, the Court decides to recognize
that the Complaint would entitle plaintiffs to a Preliminary Injunction
hearing, defendants fallaciously argue that plaintiffs'
"[A]llegations such as those asserted by petitioner,
however inartfully pleaded, are sufficient to call for the opportunity
to offer supporting evidence. We cannot say with assurance that
under the allegations of the pro se complaint, which we hold
to less stringent standards than formal pleadings drafted by
lawyers, it appears 'beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief'." Haines v. Kerner, 404 U.S. 519 (1972)
intention was only "to challenge ... just the specific conduct
that occurred on August 7. ()
Although Plaintiffs' Opposition attempts to characterize
plaintiffs' claims as challenging general underlying policies
and/or practices of defendants, plaintiffs' Complaint, which focuses
solely on defendants' conduct with respect to the August 7 demonstrations
and access restrictions, proves otherwise. Thus, to the extent
plaintiffs now attempt to challenge broad, ongoing policies of
defendants, their claims are not proper." Defendants Reply,
Inartfully, as illustrated by a colloquy at the August
6 hearing, plaintiffs' intention was to challenge a broad, ongoing,
long term policy of defendants' restriction of access to Lafayette
"MR. THOMAS: 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 concern about a visiting
head of state.
"Okay ... 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."
Plaintiffs believe it is obvious that at issue here is
a policy which defendants initiated in 1987 by closing a small
portion of Lafayette Park, for a matter of minutes, under the
claim of "security concerns." The judicial history of
this District shows that under this policy defendants have consistently
managed to avoid judicial review of their "security concerns"
through the expedient of failing to abide by the provisions of
36 CFR 1.5(b) -- thus limiting judicial "scrutiny" to
a TRO hearing, where, at best, defendants put a police officer
on the stand who says, "We have security concerns,"
5/ which the court invariably "believes should (be
given) deference" (e.g., Tr. pg. 25, see also Defendants'
Exhibit 2), the matter ends as "moot," and there is
never any further inquiry to determine the validity of defendants'
asserted "security concerns." Through this practice
not only have defendants avoided any meaningful judicial scrutiny,
but they have also exercised the policy with increasing frequency,
on lesser pretext, to the point where they are now able to "close"
(Tr. pgs. 5-7) the Park because of a public demonstration.
Hence, it seems defendants' tongue must be firmly in cheek
when articulating the notion,
"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 ... starting into the
eighth month, I believe there have been 18 Park closures just
this (year). And the first one that ever happened in history
didn't happen until 1987. So -- now () 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."
Tr. pgs. 19 -21.
"plaintiffs will not suffer any hardship if the Court does
not consider a broad challenge to defendants' policies. Indeed,
the only hardship to plaintiffs will be the burden of having to
file another suit should one become warranted in the future."
Defendants' Reply pg. 6. Of course, "fil(ing) another suit"
would be pointless when any suit filed is doomed to end up "moot."
5/ Lest we forget, before the present age of anything
goes security precautions, it was recognized that "(t)he
word 'security' is a broad, vague generality whose contours should
not be invoked to abrogate the fundamental law embodied in the
First Amendment." New York Times Co. v. United States,
403 U.S. 713, ____
(d) A Brief Period of Time
Defendants argue (Defendants' Reply at 2), and Judge Kennedy
seemingly agreed (Tr. pg. 23), that what is at issue here is merely
a "brief period of time." With respect to the deprivation
of their rights, plaintiffs do not concede that the length of
time deserves any consideration at all. "The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrod v. Burns, 427
U.S. 347, 374-375.
In this case the period of closure was for 14 hours, which
is much longer than 15 minutes. Defendants make reference to the
relevence "short periods of time" have to this case,
"plaintiffs' conten(d) that this matter presents an issue
that is 'capable of repetition, yet avoiding review'... This exception
to the mootness doctrine applies when (1) the challenged action
was too short in duration to be fully litigated prior to its cessation,
and (2) there is a reasonable expectation that the same complaining
party will be subject to the same action again." Defendants'
Reply, pg. 3.
Defendants apparently argue that, because plaintiffs' motion
for a TRO was denied, this case has been fully litigated. With
all due respect, such an argument seems ridiculous. Similarly,
if defendants contend there is no relief which can be granted
by the Court, they are again mistaken. Considering the location
(supra, ftn. 2), and the importance of the issues involved
(supra, ftn. 3), and that any disruption of First Amendment
activity results "in a significant alteration in the public
use pattern of the park area, (and) adversely affect(s) the park's
... cultural values," (supra, ftn. 4), this Court
THOMAS: "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." Tr. pg. 21 (emphasis
easily capable of granting the relief requested in plaintiffs'
proposed Preliminary Injunction Order by simply instructing defendants
that in the future they must abide by the provisions of 36 CFR
Finally, defendants seem to purport that there is not more
than "a mere physical or theoretical possibility that (plaintiffs)
will be subject to the same action again." Defendants' Reply,
pg. 3. Because to this point there has been no adequate fact finding
process in this case, 6/ only Judge Kennedy's recitation of previous
occasions when plaintiffs have been subject to the same action
before are in the record. Tr. pg. 24. Common sense, however, should
be sufficient to remove any doubt that if defendants are permitted
to pursue their policy of closing the Park whenever they feel
like it, without regard to the provisions of 36 CFR 1.5(b), it
is inevitable that plaintiffs will be subject to the same action
For the foregoing reasons, and the reasons stated in the
Plaintiffs' Opposition to Defendants' Motion to Dismiss, plaintiffs
respectfully request that the Court deny defendants motion and
schedule a Preliminary Injunction hearing.
6/ Defendants also took issue with plaintiffs reference
to the "conduct of Esyededeea Aesfyza in allegedly temporarily
displacing plaintiffs from what they perceive to be their 'customary
location' in Lafayette Park." Defendants' Reply, pg. 4. Plaintiffs
are not seeking to add any claims concerning Mr. Aesfyza. For
the record, it was Judge Kennedy who authored the "customary
location" phrase (Order, August 9, 1999, pg. 2), and plaintiffs
only sought to point out that the disruption to their First Amendment
activities was more lengthy and severe than contemplated by Judge
Kennedy's August 9th Order.
Respectfully submitted this 27th day of September, 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
CERTIFICATE OF SERVICE
I hereby state that, on September 27, 1999, a copy of the
foregoing Plaintiffs' Response To Defendants' Reply To Plaintiffs'
Memorandum In Opposition To Defendants' Motion To Dismiss was
hand delivered to the office of AUSA Eric Jaffe, 555 4th Street,
N.W., Washington, DC.