v.                        Civ. Action No. 99-2113 (TPJ)



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 Wilma Lewis.

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 these papers.

"[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.[5] 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 reality is:

(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.

"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.

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
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).


"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 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.


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."


"[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) (cites omitted).

(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'
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, pg. 5.

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 Park.

"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."


"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 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,
"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.

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 added).

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 is


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 1.5(b).

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 again.


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
(202) 462-0757

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



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.


______Donald Condron_________________