Amended Complaint


     Concepcion Picciotto,        |   
     Ellen Thomas,                |
     William Thomas,              |       Judge Charles R. Richey
           Plaintiffs pro se,     |   APPLICATION FOR AN EXPEDITED
                                  |   TEMPORARY RESTRAINING ORDER, 
          v.                      | 
                                  |         CLASS ACTION,
     The United States of America |       IN FORMA PAUPERIS      
     the U.S. Park Service,       |           
               Defendants.        |           



This Court has jurisdiction in this matter pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), and 42 USC Sections 1985(3), and 1986, 18 USC Sections, 1961, 1964, 1965, 1966, 28 USC 1331 and the First, Fifth, Ninth, and Fourteenth Amendments to the Constitution of the United States of America (hereinafter "the Constitution").



All named plaintiffs are adult human beings residing within the legal jurisdiction of the United States of America who regu- larly demonstrate at Lafayette Park for the global elimination of nuclear weapons.

William and Ellen Thomas maintain the Peace Park Vigil.

Concepcion Picciotto and William Thomas maintain the White House Vigil.


Et. al. includes other unnamed individuals who regularly and harmlessly demonstrate at Lafayette Park for any reason.


Ostensibly, the United States of America exists to administer law to protect the rights and privileges of individuals within its legal jurisdiction.

The U.S. Park Service, pursuant to the provisions of the APA, but subject to the provision of the Constitution has legal jurisdiction over Federal Parks.

Richard Robbins is an Assistant Solicitor with the Department of Fish and Wildlife, U.S. Interior Department. Part of his official duties is to advise the Park Police on the enforcement of regulations in 36 C.F.R. 7 et. seq.

The U.S. Park Police is the law enforcement agency of the Department of Interior and the National Park Service.

Officer O'Neill is employed by the United States Park Police.

Officer Keness is employed by the United States Park Police.

Officer X, whom the Park Police refuse to identify, shot Marcelino Corniel on the White House sidewalk, December 20, 1994.


This complaint seeks a permanent injunction to ban defendants from arbitrarily enforcing or threatening to enforce provisions of 36 CFR 7.96 et. seq against plaintiffs and others similarly situated, without probable cause. Plaintiffs also seek an order to restrain defendants from assigning officers O'Neill, Keness and X to duty in Lafayette Park, a Declaration and such


other relief as the court may deem appropriate.


1. Since 1981 plaintiffs, in the exercise of their religious beliefs, have regularly maintained continuous presences in the southern part of Lafayette Park for the purpose of communicating on various peace and social justice issues.

2. Beginning in February, 1994 Officer O'Neill began harassing plaintiffs under color of various CFR and D.C. regulations.

3. On March 23, 1994 Officer O'Neill arrested William Thomas under color of the D.C. Disorderly Conduct regulation.

4. On April 8, 1994 Thomas was required to answer a citation issued by Officer O'Neill in the Superior Court, District of Columbia. The U.S. Attorney declined to prosecute.

5. As a direct and proximate result of the arrest and required court appearance Thomas was completely deprived of any ability to exercise his First Amendment rights.

6. On Monday, November 7, 1994, without probable cause, Officer O'Neil informed Thomas that one of two signs he was attending was "a structure," and that he would be subject to arrest and the sign subject to confiscation under color of a CFR regulation, unless Thomas removed the sign from the park.

7. On November 8th Officer Keness said that Officer O'Neil had told Thomas that the same sign was "a structure," and that he would be subject to arrest, and the sign subject to confiscation, under color of a CFR regulation, unless Thomas removed the sign from the park. Declaration of William Thomas.


8. On November 10, 1994 Thomas wrote a letter to Defendant Richard Robbins with respect to the actions of Officers O'Neil and Keness. Declaration of William Thomas, Exhibit 1.

9. Although Thomas received a return receipt acknowledging delivery of the letter to Mr. Robbins' office, Mr. Robbins has yet to reply to the letter. However, since then there have been no further threats made about the sign in question.

10. By virtue of the fact that, on October 12, 1990, the United States District Court ordered the Park Police, defendant Robbins and others, to return the flags currently at issue to plaintiffs after they had been seized without probable cause, those defendants had clear judicial notice regarding the "First Amendment rights" involved. Declaration of William Thomas, Exhibit 2.

11. On several occasions in late November Officer O'Neil, without probable cause, threatened to arrest Concepcion and confiscate the same two flags from the White House Anti-Nuclear Vigil, under color of a CFR regulation.

12. All plaintiffs are exempted from permit restrictions pursuant to 36 CFR 7.96 (vii)(E), "the Small Group Permit Exemption." Nonetheless, in an attempt to placate Officer O'Neil, plaintiff Concepcion Picciotto applied for and obtained many permits which allowed her to have "2 signs and 2 flags." E.g., Declaration of William Thomas, Exhibit 3.

13. Notwithstanding the valid Park Service permits, on separate occasions during November and December, first Officer O'Neil, then Officer Keness each repeatedly threatened to arrest


Concepcion and confiscate her flags unless she removed them from the demonstration.

14. In fear of arrest Concepcion removed the flags.

15. On or about December 17th, after Thomas replaced the flags which Officers O'Neil and Keness had, only an hour or so earlier, intimidated Concepcion into removing, Officer Keness threatened Thomas with arrest and confiscation of the flags unless the flags were again removed from the demonstration.

16. Thomas insisted that the flags were not illegal, refused to remove them, and suggested that Officer Keness consult with his shift commander before taking any action.

17. Officer Keness returned, claimed he had consulted with his supervisor, and that the "issue was under investigation."

18. Thomas explained to Officer Keness why he believed Officer Keness' animus to be the suppression of free expression. Declaration of William Thomas.

19. On December 19, 1994, the explanation of continued harassment shifted slightly. Officers O'Neil and Keness, in concert with other Park Police officers, threatened to charge Concepcion with a CFR violation unless she removed a small plastic cooler which has been at her demonstration site every day for several years.

20. On a regular basis Officers O'Neil and Keness threatened plaintiffs, and others, without probable cause, of violating the "camping" regulation. It has been the custom of Officers O'Neil and Keness to accompany their threats with kicks, prodding with nightsticks, and banging signs with nightsticks even when there


is no question that those attending are not camping. See, Declarations of Concepcion Picciotto and Ellen Thomas.

21. To the best of plaintiffs' knowledge, neither of these two officers has actually made an arrest under the camping regulation; nonetheless and/or regardless, the repeated baseless threats are extremely intimidating.

22. At approximately 6:30 am on December 20, 1994, as he had often done in the past, Officer O'Neil kicked, and prodded Marcelino Corniel with his nightstick under color of the camping regulation. See, Declaration of Wade Varner.

23. At approximately 7:00 am Marcelino Corniel threatened Officer O'Neil with a large knife.

24. Officer O'Neil summoned backup officers, and one backup officer shot Mr. Corniel, who died on December 21st.



The actions of Officers O'Neil and Keness have been without probable cause. Plaintiffs allege these actions indicate that, animated by political or religious animosity, defendants have entered into a scheme of regulatory enforcement designed to chill, disrupt or terminate the exercise of plaintiffs' constitutionally-protected expressive religious activities in the world's premier public forum.


Plaintiffs allege that Officers O'Neil and Keness have repeatedly abused their positions of authority to intimidate plaintiffs with respect to plaintiffs' religious and expressive


activities, thus chilling the exercise of rights guaranteed under the First Amendment.


The actions of Officer O'Neil caused the false arrest and lodging of false criminal charges against plaintiff Thomas, in violation of rights guaranteed under the Fifth and Fourteenth Amendments, and directly resulted in the disruption of Thomas' expressive activities in the Park.


Plaintiffs allege that the actions of Officers O'Neil and Keness with respect to their relentless attempts to intimidate plaintiffs to remove the constitutionally protect, NPS-permited flags would constitute a pattern and practice of illegitimate abuse of power intended to suppress the free exercise of thought and expression.


Plaintiffs allege that the actions of Officers O'Neil and Keness with respect to plaintiff Picciotto's cooler illustrates a continuation of the same pattern and practice pursued with respect to the flags.


Plaintiffs allege defendant Robbins and other defendants in supervisory capacity have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Cornel in particular, in danger by failing to properly oversee a well- armed police force, although they knew, or should have known, of extra-legal conflicts by their subordinates toward demonstraters


and others in the Park.


Plaintiffs allege that the manner in which Officers O'Neil and Keness were able to repeatedly threaten plaintiffs over 1) a legal sign (paras. 6-9, supra), 2) flags, not only protected by the First Amendment, but for which plaintiffs also held a valid permit (paras. 10-18, supra), 3) a cooler (para. 19, supra), and 4) "camping" (paras. 20-24, supra) shows the broad, standardless nature of the regulations at issue, and how easily those regulations can be used as a pretext to suppress expressive activities. USA v O'Brien, 39l U.S. 367.


Repeated threats and intimidation of plaintiffs by Officers O'Neil, Keness and others has subjected plaintiffs to extreme emotional distress, had a chilling effect on plaintiffs' exercise of their rights and privileges granted them under the Constitution, and, as with the arrest of Thomas by Officer O'Neil and the intimidation of Concepcion Picciotto to the point where she removed her flags under threat of arrest, in some instances actually deprived plaintiffs of rights and privileges granted them under the Constitution.


Viewing the facts in a light most favorable to plaintiffs, defendants have acted without probable cause on repeated occasions to suppress the exercise of plaintiffs' constitutionally protected rights.

In light of the foregoing discussion, it is clear that the


plaintiffs have met the familiar standards for temporary relief set forth in Virginia Petroleum Jobbers Ass'n v. PPC, 259 F.2d 921 (DC Cir. 1958) and WMATA v. Holiday Tours, 559 F.2d 841 (DC Cir. (1977). First, there is a likelihood that the plaintiffs will prevail on the merits of the Complaint.

Second, if relief is not granted, plaintiffs will be irreparably injured in their efforts to exercise their freedom of expression free from continuing random, capricious, unjustifiable regulatory re-interpretation and enforcement. Suppression of First Amendment exercise has been held to constitute "irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), and to constitute "substantial money damages." City of Watseka v. Illinois Public Action Council, 796 F.2d 1559, Summarily Affirmed by the Supreme Court, slip opinion 86-631, January 27, 1987. Moreover, in addition to alleged constitutional injury, the complaint alleges that defendants were involved in harassing and ultimately taking the life of a person similarly situated to plaintiffs.

Third, the issuance of a Temporary Restraining Order will not harm the defendants. It will simply maintain the status quo by ensuring plaintiffs' Constitutionally-protected messages and physical safety, situations which have produced no substantial ill effects to the Government since at least as early as June 3, 1981.


Officer O'Neil's abuse of authority which preceded the shooting of Marcelino Corniel, under the pretext of the minor


regulations, is a graphic demonstration of the result of abuse of legal authority, and emphasizes the necessity for this court to protect not only plaintiffs, but the liberty, welfare, and physical well-being of anyone who happens into the abusive path of well-intentioned power gone astray, and of society in general.

The other allegations of this complaint, while not as graphic, are nonetheless extremely important. "The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart from totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

"From time immemorial" parks have been recognized as "public forums." Hague v. C.I.O, 307 U.S. 496 (1939). In this circuit Lafayette Park has repeatedly been recognized as a "unique public forum." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984); United States v. Sunrise, 707 f. Supp. 295 (1988).

"The very essence of civil liberty certainly consists in the


right of every individual to claim the protection of the laws whenever he receives an injury." Marbury v. Madison, 1 Cranch 138, 163 (1803).


WHEREFORE plaintiffs hereby pray the Court to issue a Temporary Restraining Order to restrain the Park Police from assigning Officers O'Neil, Keness and X, pending a hearing on plaintiffs' Motion For A Preliminary Injunction to enjoin subjecting plaintiffs to unnecessary abuse, under color of regulations, and to award plaintiffs nominal monetary damages and/or such other relief as the Court deems proper.

Proposed Orders are attached.

Respectfully submitted this 6th day of January, 1994,

William Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757

Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008

Ellen Thomas, Plaintiff Pro Se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757


I hereby state that, on January 6, 1995, I served copies of the foregoing Petition For A Preliminary Injunction, and Request for an Expedited Temporary Restraining Order upon the office of the United States Attorney for the District of Columbia at 555 4th Street NW, Washington, D.C.