Transcript of January 6, 1995

In other words, what the Plaintiffs have asserted here is an allegation that there has been selective and arbitrary application of the regulations governing people in the park. But, at bottom, that allegation, or those allegations are nothing more than a fact that the regulations are in fact being enforced. There are some instances of alleged misconduct, but even these conclusory allegations of alleged misconduct are not sufficient at this stage of the case to show that they are likely to prevail on the ultimate merits in this case.

Now, of course this is not the first occasion when these Plaintiffs have made sweeping and conclusory allegations that their First Amendment rights have been trammeled. Here again, no factual allegations are asserted which support this claim. To boil it down, they assert with respect to this First Amendment right that over a period of several months the Park Police officers have found two flags, a large wooden freestanding sign and a cooler might violate applicable regulations, and that demonstrators who use the park have been awakened by the police officers there who believed that the parking regulations -- or camping regulations, pardon me, may have been violated.

They also assert that several months ago one camper was improperly arrested.

MR. THOMAS: I object.

THE COURT: It's in the paper, sir.


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MR. THOMAS: No camping involved there at all.

THE COURT: And that he was therefore charged with disorderly conduct, which the United States Attorney's Office refused to prosecute.

Again, the Court finds that these regulations and the facts asserted do not demonstrate the sort of immediate irreparable harm that would justify the exercise of the extraordinary power vested in the courts to issue injunctive relief.

Now, this Court is very sympathetic to anyone's claim to First Amendment rights. In fact, these very Plaintiffs have been successful in this Court in asserting a First Amendment claim on the ground of their religion. Notwithstanding that in this court, the Court of Appeals disagreed with this judge.

But notwithstanding that, the question is whether the issuance of a TRO today would also be of harm to the public interest. There isn't any question but what the various regulations, that these people who seek to demonstrate in the exercise of their First Amendment rights in Lafayette Park, and who do in fact demonstrate there, must do so in accordance with the reasonable regulations, which they do not contest as being unconstitutional. These regulations serve both to protect the security of the President of the United States, the occupants I the White House staff, and their visitors, as well as, and not the least important of which are members of the public who wish


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to visit in the park itself or traverse the park itself.

The Court cannot avoid taking notice of the fact that during the last several weeks, if not months, the security of the United States President has been threatened in close proximity to where these Plaintiffs demonstrate. There has been a crashing of a small plane on the grounds of the White House, and two instances of alleged gunfire at the White House itself. Therefore, the public interest requires that the Park Service be able to continue to equitably enforce its regulations that have been upheld against constitutional challenge from time to time since 1981 to the present time. However, these are necessary findings that the Court must make as a preliminary matter.

Now, the Plaintiffs in their papers, that is, their complaint for declaratory and injunctive relief, which they filed, as I previously noted, on December 22, 1994, and which the Court received later that day, still has not been heard. These are preliminary findings. But most of the allegations, I must add very quickly, were addressed in Judge June Green's court.

MR. THOMAS: They were not. They didn't happen until just this month, since November. That case was decided in 1989. These are all new instances.

THE COURT: Most of the claims --

MR. THOMAS: The claims here --

THE COURT: Just a moment, Mr. Thomas. I'll finish,


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and then you can say whatever you want to say.

MR. THOMAS: Thank you. As long as you give me an opportunity.

THE COURT: Most of these claims, particularly with respect to the Constitution, which we're not concerned with yet, were addressed by Judge Joyce Hens Green, and this was done by order filed on October 12, 1990, with the Clerk of this Court, together with a lengthy opinion.

In any event, in view of the importance of resolving this matter on the merits, the Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, will combine Plaintiffs' claim for a preliminary injunction with its application for a merits determination, and that hearing will be had beginning at 2:00 p.m. on January 12, 1995. The motion for a temporary restraining order will again be denied.

MS. RIDER: Your Honor, if I may. There are defendants here who are named who have not been served but are named in their individual capacity. And as this Court is well aware, the law is well established that defendants -- federal employees sued in their individual capacities are entitled to assert certain defenses and have decisions on them before there is a trial on the merits, and should not be subjected to testimony, discovery, anything of that nature. So, if the Government files its motion as to those, we would just ask that when the Court holds the hearing, if it would decide that preliminary motion


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Prior to getting into the merits of the case.

THE COURT: Well, you are correct. You are correct about that. Now, Mr. Thomas?

MR. THOMAS: I would ask the Court --

THE COURT: Excuse me. May I speak to you, sir?

MR. THOMAS: yes, sir. Excuse me.

THE COURT: you're going to have to comply with Rule 4 and the rules with respect to service of process. And these Defendants are going to have to have an opportunity to be heard. The rules give them more time than that which I have provided for by setting the hearing on the afternoon of January 12 of this year. you must understand that -- and I'll be glad to share it with you or anybody in the world. That's the only two days I have. I don't mean to give you two days, but that's the only day I have, almost until the end of May. I can't do it any other time because other litigants are already occupying my calendar. I hope you understand that, because it's a fact.

MR. THOMAS: I think I have a good solution to this problem, your Honor, because we would like to do some deposition before this trial.

THE COURT: Go ahead.

MR. THOMAS: And what we need to do --

THE COURT: Well, you've got to get --

MR. THOMAS: I can't afford service of process. But


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Title 18 of the U. S. Code, Section 1415(c) requires the U. S. Marshal to serve process. So I would move for Your Honor to order the U. S. Marshals Service to serve these Defendants immediately.

THE COURT: Ms. Rider? I can do that.

MR. THOMAS: Thank you. That would help.

MS. RIDER: We don't object to that. You know, this has happened so fast that I don't have authority from the Department of Justice to represent these individuals, so I can't say, "Gee, I'll accept service."

THE COURT: How long is it going to take you to find out?

MS. RIDER: Well, it takes -- I mean, even at the fastest it takes several days. And also, the Plaintiff says he wants to take some depositions, but, again, this Court is aware that individual defendants sued under the Bivens case have a right not to undergo discovery, but to have their --

THE COURT: Not only under Bivens, but under the doctrine of qualified immunity as well. And they may not be necessarily required to submit to a deposition. The law is very clear on that. In a case in this circuit which I had, Justice Ruth Ginsberg wrote as a circuit judge, Stevens versus Belmont. I assume you remember that case, being from the Civil Division. In any event, if you can't effect service of process, I'11 be here on the afternoon of the 12th. And if you can't get


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authority to represent these people by that time, well, you just come in here with the proper motions and we won't have a hearing, but we'll have the hearing on the motions.

I want to give him his day in court, and his colleagues, as soon as we possibly can. But at the same time, there are rules. There is a process that must be followed. We all have to follow it.

MS. RIDER: As long as it's clear, so that we don't have to come back to the Court, that there will be no discovery before that hearing, so that we don't have to bother the Court again but we all know that there's no discovery. We will obviously be filing a motion based, as the Court said, on qualified immunity.

THE COURT: Well, it may be absolute, it may be qualified. I don't know. I'm not here to give advisory opinions,

MR. THOMAS: I would like to say, if I may, Your Honor --

THE COURT: Yes.

MR. THOMAS: That I'm -- if I think it's necessary, I'm going to make efforts to do depositions, and whatever happens happens. But I don't see that the representations that Ms. Rider made has anything to do with the Clerk effecting service of process. Whether or not she's assigned to the case or whether Melvin Belli is assigned to the case, I think the U. S.


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Attorney is required to make service of process. And if we get that done, then you and I won't be here in the courtroom alone on the 12th.

THE COURT: Well, I'll tell you one thing I'll do. I will issue an order directing the Clerk to make copies of the complaint and your application for injunctive relief, papers you filed, have the Marshal serve it upon the Defendants, including the U. S. Attorney., in a proper fashion. We do that regularly for pro se people.

MR. THOMAS: Yes, sir.

THE COURT: Now, that takes time. You can't just -- we have a very bad budgetary crisis, whether you know it or not, that not only impairs our Clerk's Office, which is vastly understaffed, but the Marshal Service as well.

MR. THOMAS: I understand.

THE COURT: They have a lot to do other than run around town serving papers.

Now, I'm not suggesting, Mr. Thomas, that your claim is unimportant. Everybody's case is important. I'm often asked: Judge, after all these years, what's the most important case you've tried? You know what my answer is?

MR. THOMAS: No.

THE COURT: Every case is important, because every litigant, no matter who they are, feel they are --

MR. THOMAS: Good answer.


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THE COURT: Pardon?

MR. THOMAS: Good answer.

THE COURT: Well, it's the truth.

MR. THOMAS: Right.

THE COURT: So, they are all important.

I'll do the best I can for you. Whether we can do it on the 12th, I don't know, but I'll save the time in hopes that we can get is here,

MR. THOMAS: One quick point, Your Honor. I have a problem with rushing this, but I also have a big problem with not rushing it. I'm really disappointed, because there are facts that I was ready to present today that you wouldn't have been able to make the decisions you made if you had heard. And I think you should have heard the facts today. So, I'm disappointed that we didn't have this hearing on December 22nd; I'm disappointed again that we haven't had it today. But, rather than rush to judgment on the 12th, if we're going to have to continue to live under the same uncivilized conditions that we've been subjected to, I would like to make as good a showing as possible at the hearing on this matter. And so rather than rush this thing on the 12th, if we can't get it together, I would rather put it off to a later date.

THE COURT: All right, sir. I assume you've given my clerk, Ms. White, your address and telephone number. I haven't got the file open again; I've closed it. As long as she has


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your telephone number where you can be reached.

MR. THOMAS: I think that it should be done quickly and --

THE COURT: All right. We'll do the best we can. I'll issue an order tonight directing the Clerk, she'll get to it tomorrow, to have the Marshal serve the papers forthwith. That's as soon as possible. And we'll try to find these defendants, wherever they are, and we'll do the best we can. However, they don't have to show up right away, on the 12th. I hope they will to accommodate getting this case over properly. You know, properly. Properly. The rules provide that upon the filing of a complaint, they have 120 days to effect service of process. Then there's 20 days thereafter for filing an answer or a responsive pleading.

MS. RIDER: Or 60, if you're the Government.

THE COURT: Or 60, if you happen to be the United States Government. So, sir, as you can see, I'm trying to expedite this for your benefit. If you think that's too early because of any reason you want to assert, I don't have to do it then. I'll do it whenever I can.

MR. THOMAS: Well, I'm asking for the earliest possible date, when --

THE COURT: Well, if we can get it done then, we'll do it. I assume that when I issue the order tonight, the Clerk will -- wait a minute. This is Friday. The Clerk will have the


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Marshal serve it on Monday, which will be the 9th. Hopefully, those people, through her good offices, could be brought in here on Thursday afternoon. If not, sir, it's just -- she'll have to advise me.

MS. RIDER: May I just make a point of clarification?

THE COURT: Yes.

MS. RIDER: If we come, are you saying you want -- I mean, -if I have representation authority and we have a motion pending, the Court still wants the individually-named defendants here or --

THE COURT: Yes. If they are needed for testimony on the merits, yes.

MS. RIDER: So the Court will decide the immunity motion before --

THE COURT: Yes. But it's possible you might lose. Possible.

MS. RIDER: Thank you, Your Honor.

THE COURT: If you win, then they won't have to testify. If he wins, they might.

MS. RIDER: Thank you, Your Honor.

THE COURT: All right?

Madam Clerk, call the next case.

(Proceedings concluded at 3:45 p.m.)

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CERTIFICATE OF REPORTER
I certify that the foregoing is a correct transcription from the record of proceedings in the above-entitled matter.

Gordon A. Slodysko
Official Court Reporter