Nature of Complaint, Facts

Nature of Complaint, Facts

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'Neill 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'Neill 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.

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

  10. 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.

  11. 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.

  12. On several occasions in late November Officer O'Neill, 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.

  13. 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'Neill, 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 1.

  14. Notwithstanding the valid Park Service permits, on separate occasions during November and December, first Officer


    O'Neill, then Officer Keness each repeatedly threatened to arrest Concepcion and confiscate her flags unless she removed them from the demonstration.

  15. In fear of arrest Concepcion removed the flags.

  16. On or about December 17th, after Thomas replaced the flags which Officers O'Neill 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.

  17. 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.

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

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

  20. On December 19, 1994, the explanation of continued harassment shifted slightly. Officers O'Neill 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.

  21. On a regular basis Officers O'Neill and Keness threatened plaintiffs, and others, without probable cause, of violating the "camping" regulation. It has been the custom of


    Officers O'Neill and Keness to accompany their threats with kicks, prodding with nightsticks, and banging signs with nightsticks even when if there is no question that those attending are not camping. See, Declarations of Concepcion Picciotto and Ellen Thomas.

  22. 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.

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