Transcript of January 6, 1995

MR. THOMAS: For the record, I think that I'm --


THE COURT: How many witnesses do you want, sir?

MR. THOMAS: I think four, five. No more than six.

THE COURT: Have you given notice to the other side of your intention to call witnesses and to offer any evidence other than that which is in the declarations or affidavits in support of your application?

MR. THOMAS: I served a subpoena, or I had a subpoena served on the U. S. Attorney last night, requesting Mr. Robbins, and I see he's in court. So the other witnesses are all here, and I don't think we'll have any problem with anything.

THE COURT: Well, no, we're not going to have any problem, sir. You've been in my court many times. I've ruled in your favor; I've ruled against you.

Let me just look at something, if I may, for a second. Insofar as your claim of a pattern and practice which you just mentioned, that's even in Ms. Picciotto's declaration, maybe in yours. Yours is in the form of a letter, though.

MR. THOMAS: No. That's a different exhibit, I think. If you're looking at the letter of November 10?

THE COURT: November 10. Yes, I am.

MR. THOMAS: No, no. That's different. That's Exhibit 1, I think. Is that right?

THE COURT: Let me see. I don't know. It's not labeled. Yes, it is. I apologize to you. It is labeled Exhibit 1.


Well, you are withdrawing your claim of a constitutional deprivation here, as I understand it --

MR. THOMAS: Not a constitutional deprivation.

THE COURT: I want to get this straight, to assist you and everybody else concerned, including the public. You indicated you are not asserting a constitutional claim, merely a pattern and practice on the part of the law enforcement community over there at Lafayette Park with respect to the enforcement of these regulations. Is that correct?

MR. THOMAS: A pattern and practice in enforcement of these regulations which deprive us of rights guaranteed under the First Amendment, which subject us to threat, intimidation, sometimes violence, and which also subject us to intense psychological pressure and waste a lot of our time.

THE COURT: All right. Anything else?

MR. THOMAS: No. But I want to be sure. Although I'm not challenging the constitutionality of the regulations, what I'm saying is that these' regulations -- and what we'll do is we'll show testimony today that these regulations have been used without any cause, to cause us intimidation, psychological stress, deprivation of First Amendment rights. Although the regulations are constitutional, they are being used in an unconstitutional manner, and that's what we'll show. And we'll show that we are likely to prevail at trial because -- we're going to show that. We'll show that we're suffering irreparable


injury because our First Amendment rights are being deprived, because we're being subjected to very uncivil behavior, because we're being put in situations such as the shooting of Marcelino Corniel illustrates. We're being put in very dangerous positions as a result of the police arbitrary abuse of power.

THE COURT: Very well. Now, you want Officers O'Neill and, I don't know how to pronounce his name, K-E-N-E-S-S --

MR. THOMAS: Keness, I think.

THE COURT: -- removed from the park; is that right?

MR. THOMAS: And I would say --

THE COURT: Is that right?

MR. THOMAS: Yes, sir.

THE COURT: All right. Anything else?

MR. THOMAS: I would like to say that the Government won't suffer any ill effects by having those three officers stationed somewhere else. And the public interest will be best served --

THE COURT: I don't know who the third officer is.

MR. THOMAS: "Officer X." I don't know either, exactly. The Park Police have refused to name him, as far as I know.

THE COURT: All right, sir. All right.

MR. THOMAS: And then I would finally show that the public interest is served by granting this request so that other people aren't deprived of their First Amendment rights, that


other people aren't subjected to the same uncivil, illegal treatment that we've been subjected to, and the police will act in a little more civilized manner by not shooting people after harassment doesn't work.

THE COURT: Very well.

All right, Ms. Rider. Let me hear your response to the extent that you already haven't responded.

MS. RIDER: Your Honor, as near as I can tell, in the complaint the Plaintiff alleges that there were -- he lists about four incidents which he alleges show a pattern and practice of illegal, unconstitutional enforcement. One is that one of the demonstrators had two flags attached to her sign and that the Park Police officers told her she would have to remove the flags from her sign. Under the regulations, it's clear. There are specific limits on how big the sign can be. If you add a flag, it's outside the limit, it's outside the regulation. Mr. Thomas has conceded the regulations are constitutional. If someone wants to have a flag with their sign, they can hold it in their hand. That's perfectly okay. But the limitations on the size of the sign, which Mr. Thomas has conceded are constitutional -- you know, if you stick a flag on the top of it, you're outside the limits. So, those, clearly there's no likelihood of success on the merits.

The next claim is that when people are sleeping in the park, that they are awakened. Mr. Thomas again concedes, as he


must, that the camping regulation is valid, it's constitutional. What the Park Police officers attempt to do is, if someone looks like they're sleeping, engaging in camping in the park, they try to wake them up, get them to move on, so that they won't have to arrest them, so that they won't have to prosecute them, so that the person will voluntarily comply with the regulations. There's certainly nothing wrong with that.

And, indeed, Judge Green's decision in Huddle against Reagan, which we have given a copy to the Court since it's not published, but on Lexis, describes that, and describes a videotape that she saw of it.

The other issue in the case is, if I can recall it, that Mr. Thomas -- oh! That one of the demonstrators has a cooler and that the cooler, they are being told to make the cooler move. I don't know how that's a First Amendment violation by any stretch of the imagination. But, again, there are limits to the amount of paraphernalia you can have with you in Lafayette Park. It's conceded that's constitutional. I think it's three cubic feet. That cooler may be fine, unless it puts you over the limit.

So, I don't see any imminent constitutional threat here. These plaintiffs, who have been before this Court many times, are certainly not in a situation where they are brandishing weapons at police officers or where they have been threatened with some sort of assault or harm -- nothing that's


in the papers demonstrates that there's anything unconstitutional going on here. It's just an application of the regulations. They are applied to everybody. Nobody is exempt.

Mr. Thomas also complains that his sign, they're saying, "Your sign doesn't comply with the regulations." Well, that's certainly not a constitutional issue. You know, if you go out there and look at the sign, again, the regulations are very specific. You can have a sign of certain dimensions, certain thickness, with reasonable supports. If you go beyond reasonable supports, you're outside the regulation.

This is not the sort of situation that requires emergency injunctive relief. There's no showing that either of the two officers who are named have done anything that could be even colorably described as depriving someone of their constitutional rights. And certainly with the necessity that the regulations be applied to everyone equally, and the security concerns, especially those raised with the recent events around the White House, that the Park Service has to be able to respond to those. They have to be able to enforce the regulations. That's all they're doing here. And there is certainly no authority that I'm aware of for the Court to micromanage the Park Service and say you've got to get these particular officers, you can't have them there.

We don't see any likelihood of success on the merits; we don't see any emergency, immediate, irreparable,


constitutional harm to the plaintiffs. And we certainly think the public interest weighs in favor of allowing the Park Service to enforce the regulations and to continue to patrol Lafayette Park, to prevent people from camping, to make sure the signs don't exceed the limits, and to do their job.

If the Court has no questions.

THE COURT: That's all right. I just want to -- maybe I will. Let me look at something in the rules.

I see nothing in the rules, Ms. Rider and Mr. Thomas, which requires the taking of any testimony upon the occasion of hearing an application for a temporary restraining order. Can you cite anything to the contrary?

MR. THOMAS: I'm not an attorney, but I would like to --

THE COURT: Wait just a moment, please. I'm asking you a question. Your complaint is not a verified complaint, although you do have a declaration of Concepcion -- how do you pronounce this last name, so I won't mispronounce it?

MR. THOMAS: Picciotto.

THE COURT: Picciotto. And I think there's one by you too, Mr. Varner, too.

MR. THOMAS: I'll tell you what. I could argue with what the Government said, but I'm not going to do that. I have witnesses here who will illustrate that her representations are false. And if you hear the testimony, you'll be convinced that


representations that the Government has made are false. That's the only reason I can suggest that you should take testimony. But if you want to ignore the facts and rule on the Government's representations -- well, provided you rule in my favor, I don't care.

MS. RIDER: May I respond, Your Honor?

THE COURT: Ms. Rider.

MS. RIDER: I believe my representations are to what the regulations say. The Court can certainly look at the regulations and figure out what the regulations say. I have a copy of 36 CFR here; I'll be glad to hand it up to the Court. And I'm simply looking at the allegations made in both the declaration and the complaint in terms of whether they support the issuance of a TRO. Thank you.

THE COURT: All right. I'll tell you what. How many witnesses do you say you have, sir?

MR. THOMAS: No more than six.

THE COURT: And' how much time do you estimate it will take for their direct examination?

MR. THOMAS: The witnesses that I know I don't expect will take more than -- on the far side, I would say 20 minutes.

THE COURT: All of them?

MR. THOMAS: Each. I hope that each one, I hope that they won't take more than five minutes. Mr. Robbins may take a little longer, but I think I have enough paper that I can make


the points pretty shortly.

THE COURT: Well, the Government is --

MR. THOMAS: Because, if I may -- if I may just finish. I forgot.

THE COURT: Surely.

MR. THOMAS: The main thing that I think is still not clear here is we're not challenging the constitutionality of the regulations. We're challenging --

THE COURT: You've made that clear.

MR. THOMAS: But the U. S. Attorney is suggesting that all you have to do is look at the regulations. And I say that because we're not challenging the regulations, you have to do more than that.

THE COURT: All right.

MR. THOMAS: Thank you.

THE COURT: The Court has before it an application for a temporary restraining order which results from a complaint filed by William Thomas,' Ellen Thomas, and Concepcion Picciotto against the United States, Mr. Richard Robbins, and the United States Park Service, and the United States Park Police and Officer O'Neill, Officer Keness, and "Officer X." This case was filed sometime in the afternoon of December 22nd, 1994.

Later in the day that day, the Court was advised by the Clerk of the Court that such papers, together with an application for a temporary restraining order, had been filed


and that the Plaintiffs were in or about the courthouse seeking a hearing. The Court did not have access to anybody in the way of a staff, it was here alone, and therefore did not have the facilities to immediately convene the Court and to have a hearing. In addition, the Court was advised by the Clerk's Office that service of process had not been then provided to the United States.

The testimony offered today indicates -- does not indicate that proper service of process was effected. And as a result thereof, the Court denied the application for a temporary restraining order without prejudice and set the matter down for hearing today so that both parties would have an opportunity to be heard on that application for a temporary restraining order.

The Court has carefully considered the Plaintiffs' complaint, as I've previously indicated, their motions, the declarations in support of the complaint and the application for a temporary restraining order, as well as the opposition which was filed today by the United States. In essence, it appears that the Plaintiffs, who are three demonstrators who maintain vigils in Lafayette Park, seek an injunction from this Court, ar extraordinary remedy, to ban the Defendant from arbitrarily enforcing or threatening to enforce the regulations governing demonstrators in the National Capital Parks Region, including, but not limited to, Lafayette Park across from the White House.

Now, it has been asserted here that while the


regulations are not in contest, they are being enforced improperly and contrary to the Constitution and laws of the United States. That is a matter that will have to be determine at a later hearing. The regulations at issue, even though they are not in contest, have been upheld as a result of numerous challenges by the same plaintiffs and others, going back to 1981 until this date, so the Court will not review the text of them today.

The question before the Court today is whether the Plaintiffs through the papers presented have provided and satisfied their burden of proof that they will have a likelihood of prevailing on the merits, in the first instance, and secondly, that they will suffer immediate and irreparable harm unless the injunctive relief is granted. Thirdly, they must establish that the issuance of an injunction will not substantially harm other parties; and fourth, that the issuance of the injunction would not violate or harm the public interest.

The Court finds that the Plaintiffs have failed on this temporary restraining order. They have failed to meet the firs test, namely, that they are likely to succeed on the merits. This does not mean that they may not ultimately prevail, but at this time, their papers do not suggest that they have satisfied their burden. In fact, on the contrary, it appears that their claims will fail on that ground on the merits.