UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Concepcion Picciotto, |
Ellen Thomas, |
William Thomas, | Judge Charles R. Richey
Plaintiffs pro se, | APPLICATION FOR AN EXPEDITED
| TEMPORARY RESTRAINING ORDER,
| CLASS ACTION,
The United States of America | IN FORMA PAUPERIS
the U.S. Park Service, |
the U.S. Park Police, et al |PETITION FOR PRELIMINARY INJUNCTION
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
William and Ellen Thomas maintain the Peace Park Vigil.
Concepcion Picciotto and William Thomas maintain the White
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
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.
NATURE OF COMPLAINT
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.
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,
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
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
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.
THE REQUIREMENTS FOR TEMPORARY RELIEF
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
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,
THE NECESSITY FOR TEMPORARY RELIEF
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).
PRAYER FOR RELIEF
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,
CERTIFICATE OF SERVICE
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.
William Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
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