Defendant's Opposition

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

DEFENDANTS' OPPOSITION TO PLAINTIFFS'
MOTION TO RECONSIDER DENIAL OF PLAINTIFFS'
APPLICATION FOR A TRO, OR, ALTERNATIVELY
TO DISMISS THE COMPLAINT AS FRIVOLOUS

On January 6th, this Court, after a hearing, denied the plaintiffs' motion for a temporary restraining order. The Court found that the plaintiffs had failed entirely to carry their burden to demonstrate their entitlement to such extraordinary relief. At that time, the Court scheduled a prompt hearing to consider plaintiffs' request for a preliminary injunction and the merits of plaintiffs' complaint. See Rule 65(a)(2), Fed.R.Civ.P. Five days later, plaintiffs filed a motion to reconsider this decision or to dismiss their complaint as frivolous. This motion fails to call into question the soundness of the Court's decision to deny the request for a TRO, and fails to supply any additional reasons that would demonstrate the necessity for emergency injunctive relief. Instead, the plaintiffs launch an ad hominem attack on this Court, and seek to avoid a resolution of the merits of their complaint. Because the Court's decision to deny the request for a TRO was plainly correct, and the plaintiffs' alternative request to dismiss their complaint as frivolous

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is yet another attempt [l] to avoid this Court's resolution of their complaint, the motion should be denied.

FACTUAL BACKGROUND

Plaintiffs, three demonstrators who maintain vigils in Lafayette Park, seek an injunction to "ban defendants from arbitrarily enforcing or threatening the enforce" the regulations governing demonstrators in the National Capital Region parks, including Lafayette Park. Complaint, p. 2. Plaintiffs also seek an injunction directing the Park Police as to which officers can and cannot be assigned to Lafayette Park. Id,

In their complaint, plaintiffs assert that two Park Police officers have attempted to enforce the regulations governing demonstrators in Lafayette Park. See 36 C.F.R. § 7.96. Plaintiffs assert that these regulations, as they apply to "structures" and "camping" are vague and are subject to arbitrary enforcement, thereby chilling plaintiffs' speech in violation of the First Amendment. As the plaintiffs admitted at the January 6th hearing, these very regulations have been upheld against numerous challenges -- including challenges by these plaintiffs. See Clark v. CCNV, 468 U.S. 288 (1984) (upholding camping regulation, 36 C.F.R. § 7.96(i), as valid time, place and manner restriction); White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518 (D.C. Cir. 1984) (upholding White House sidewalk sign, parcel and "center zone" regulations); United States v.

[1 The plaintiffs' first attempt was their Motion to Recuse, which this Court correctly denied on January 6, 1995.]

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Thomas, 864 F.2d 188 (D,C. Cir. 1988) (upholding conviction under camping regulation and rejecting constitutional challenge); Thomas v. Lujan, 791 F.Supp. 321 (D.D.C. 1991) (upholding Lafayette Park storage regulation). Indeed, similar claims of conspiracy and deprivation of First Amendment rights brought by these plaintiffs have been rejected more than once. See Huddle v. Reagan, 1991 U.S. Deist. LEXIS 7070 (D.D.C. 1991); Thomas v. United States, 696 F.Supp. 702 (D.D.C. 1988).

ARGUMENT

In applying for a temporary restraining order, plaintiff bears the burden of providing evidence demonstrating: (1) that he is likely to prevail on the merits; (2) that he will suffer "immediate [irreparable] harm within the next ten days unless injunctive relief is granted"; (3) that the issuance of an injunction will not substantially harm the other parties; and (4) that the issuance of the injunction will not be adverse to the public interest. Optic-Electronic Corp. v. United States, 683 F.Supp. 269, 270 (D. D.C. 1987), (emphasis in original), citing Washington Metropolitan Area Transit Commission v. Holiday Tours. Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Here, as the Court correctly found on January 6th, the plaintiffs fall short on each of the four factors,

1. Plaintiffs Have Failed to Demonstrate that
They Are Likely to Succeed on the Merits.

To the extent that the plaintiffs challenge the constitutionality of the regulations governing signs and camping in Lafayette Park, it is plain that their claims will fail. See

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e.g., Clark v. CCNV, 468 U.S. 288 and White House Vigil, 746 F.2d 1518; Huddle v. Reagan, 1991 U.S. Deist. LEXIS 7070; Thomas v. United States, 696 F.Supp. 702. To the extent that the plaintiffs allege selective or arbitrary enforcement, their allegations fail to demonstrate anything more than that the regulations are being enforced. See Huddle at *29. As Judge Green noted in Huddle, "[e]ven if plaintiffs had pointed to scattered instances of misconduct, it is clear that plaintiffs are not entitled to relief." *26-*27 (footnote omitted). Thus, even accepting plaintiffs' allegations, they are entirely unlikely to prevail on the merits of their claims.

Moreover, as the attached letter from Randolph Myers demonstrates, far from arbitrarily enforcing the applicable regulations, the Park Police officers have correctly informed plaintiffs that they are in violation of certain regulations. This letter, describing the nature of the violations, further supports the Court's conclusion of January 6th that plaintiffs are unlikely to prevail on the merits of their claims.

2. Plaintiffs' Have Failed to Demonstrate
Immediate Irreparable Harm.

Although the plaintiffs make sweeping, conclusory allegations that their First Amendment rights are being trampled, they have failed to assert a factual foundation for these assertions. Plaintiffs' factual allegations boil down to claims that, over a period of several months (1) Park Police officers found that two flags, a large wooden free-standing sign and a cooler might violate the applicable regulations; (2)

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demonstrators who Park Police officers believe are violating the camping regulation have been awakened; and (3) several months ago one plaintiff was charged with disorderly conduct but was not ultimately prosecuted. These facts simply do not demonstrate the sort of immediate, irreparable harm that would justify the imposition of a temporary restraining order.

3. The Issuance of an Injunction Would
Be Adverse to the Public Interest

Finally, and most importantly, the issuance of the temporary restraining order sought by plaintiffs would be extremely harmful to the public interest. The regulations governing demonstration activities in Lafayette Park serve both to protect the security of the President and other occupants of the White House, and to preserve and protect the Park itself. The Court noted at the January 6th hearing the rash of incidents that have occurred in the last few months threatening the security of the President, ranging from the crash of a small plane on the White House lawn, to instances of gunfire at the White House. The public interest certainly requires that the Park Service be able to enforce regulations that have been upheld against constitutional challenge time and again. In the face of the plaintiffs' meager factual allegations, the public interest patently supports the denial of plaintiffs' request for a temporary restraining order.

CONCLUSION

For the reasons stated and upon the authorities cited, the plaintiffs' motion for reconsideration or in the alternative to dismiss their complaint as frivolous should be denied.

Respectfully submitted,

_____________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney

_____________________________
SALLY M. RIDER. D.C. BAR #436588
Assistant United States Attorney

OF COUNSEL:

RANDOLPH MYERS, Esq.
Office of the Solicitor

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