The next claim is that when people are sleeping in the
park, that they are awakened. Mr. Thomas again concedes, as he
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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
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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,
20
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
21
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
22
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
23
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
24
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.