Amended Complaint for Declaratory and Injucntive Relief
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
William Thomas, |
2817 11th Street N.W |
Washington, D.C. 20001 |
(202) 462-0757 | C.A. No. 95-1018
Plaintiff pro se, |
|
v. | COMPLAINT
| AND PETITION FOR
United States of America | PRELIMINARY INJUNCTION,
William Clinton, | IN FORMA PAUPERIS
1600 Pennsylvania Avenue NW |
Washington, D.C. | CLASS ACTION
|
the U.S. Secret Service, |
|
Robert Rubin, |
Assistant Secretary of Treasury|
1500 Pennsylvania Avenue NW |
Washington, D.C., |
|
the District of Columbia, |
|
Captain Radzilowski |
D.C. Metropolitian Police |
2301 L Street NW |
Washington, D.C., and |
|
D.C. Metropolitan Police Dept.,|
Defendants. |
________________________________|
AMENDED COMPLAINT
FOR PUNITIVE AND COMPENSATORY DAMAGES,
DECLARATORY AND INJUNCTIVE RELIEF
This Court's jurisdiction over this matter is established by
28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (civil
rights), the First, Fourth Fifth and Ninth Amendments to the
Constitution of the United States of America ("Constitution"),
Administrative Procedures Act (APA) 5 U.S.C. §§ 553, the
Environmental Policy Act ("EPA") U.S.C. __ et. seq., 36 CFR 1.5,
et, seq, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388 (1970), and 42 USC Sections 1983 and 1985(3),
1
PARTIES
Plaintiff is an adult human being residing within the legal
jurisdiction of the United States of America who, as a religious
exercise, has devoted his life to regularly communicate with the
general public on issues of broad concern, in Lafayette Park. To
this end plaintiff seeks to be available to those who may be
interested in the issues he raises on a twenty-four hour basis.
CLASS ACTION
Et. al. THE PEOPLE OF THE UNITED STATES are named as
plaintiffs by virtue of the rights, privileges, and immunities
guaranteed by the First, Fourth, Fifth, and Ninth Amendments
under the theory that when the government acts to suppress the
guaranteed rights, privileges, and immunities of any individual
under color of regulation, the personal liberty of all
individuals is jeopardized under color of the same regulation.
DEFENDANTS
Ostensibly, the United States of America exists to
administer law to protect the rights and privileges of
individuals within its legal jurisdiction.
William Clinton, is the President of the United States of
America, sued in his official capacity.
Robert Rubin is Secretary of the U.S. Treasury, sued in his
official capacity.
The U.S. Secret Service has responsibility for providing
protection for the President of the United States.
Captain Radzilowski is employed by the D.C. Metropolitan Police Department, Special Operations Division,
Unnamed Others are police officials who carried out Capt.
2
Radzilowski's directive by incarcerating plaintiff.
The District of Columbia is named by virtue of the actions of its police officers.
NATURE OF COMPLAINT
This complaint seeks a permanent injunction to ban
defendants from closing, or enclosing Lafayette Park, or sections
thereof. Plaintiffs also seek a preliminary injunction to enjoin
defendants from
(1) making any further changes to Lafayette Park
(2) enclosing Lafayette Park with any more permanent barriers,
and
(3) closing the Park, except in the event of certifiable
emergency, for any periods pending the resolution of this
complaint, or until defendants comply with provisions governing
park closures..
FACTS
1. Lafayette Park, situated directly across the street from
the Presidential residence, is the foremost public forum in the
United States, if not in the world.
2. Since 1981 plaintiff, in the exercise of his religious
beliefs, has regularly maintained a continuous presence on the
White House sidewalk and southern part of Lafayette Park for the
purpose of communicating on issues of peace and social justice.
3. In pertinent part 36 CFR 7.96 (g)(2)(i) provides, "(d)emonstrations involving 25 persons or fewer may be held without a permit..."
4. Pursuant to the provisions in 16 U.S.C. 1 et. seq., but
subject to the provision of the Constitution, the U.S. Park
Service has legal jurisdiction over Lafayette Park.
5. Pursuant to the provisions of 36 CFR 1.5, et, seq, the
3
Superintendent of the Park Service is the individual vested with
the legal power to close federal parks, or sections thereof.
6. Beginning in April, 1992 the Executive Committee [1] for
the Comprehensive Design Plan for the White House and President's
Park ("the Plan") began studying changes to the area surrounding
the White House. Exhibit 1, hereto.
7. Consistent with every known legal precedent, the
Executive Committee recognized Lafayette Park as "a symbol of our
free and democratic nation." Id.
8. Consistent with established legal procedures, (codified
at 5 U.S.C. § § 553, et, seq; 36 CFR 1.5, et, seq), for projected
substantial alterations in the use of federal parks The Executive
Committee solicited public participation in "preservation
strategies ... for the(se) symbols not only of the executive
branch of our Republic, but also of public access to the
government." Exhibit 2.
9. Consistent with APA requirements, public comments on
various proposed changes to areas around the White House were
first solicited during April, 1995.
10. On May 5, 1995 plaintiff met with Ann Bowman Smith, Team
Manager for the Executive Committee. At that time Thomas
expressed the particular concern of preserving the symbol of our
[1 The stewardship and oversight agencies involved in the
plan have been the Executive Office of the President, Executive
Residence at the White House, White House Military Office,
Department of the Treasury, U.S Secret Service, General Services
Administration, National Park Service, District of Columbia,
Commission of Fine Arts, National Capital Planning Commission,
Advisory Council on Historic Preservation, and the Pennsylvania
Avenue Development Corporation.]
4
free and democratic society.
11. Ms. Smith assured Thomas that the Team was very
sensitive to the importance of Lafayette Park and had been giving
that issue "a lot of consideration." She assured Thomas that
every effort would be taken to insure that the Park remained free
and open.
12. 42 USC 4321 provides:
"The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment, to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man, to enrich the understanding of the ecological systems and, natural resources important to the Nation; and to establish a Council on Environmental Quality."
13. In apparent compliance with the provisions of 42 USC 4321 (or, perhaps, some other similar provision of law), and consistent wityh a project which threatens such monumental impacts on "harmony between man and his environment" of freedom and democracy, the Executive Committee scheduled an Environmental Impact Statement to be completed 1996. See Exhibit 1.
14. However, at approximately 5:30 a.m. on May 20, 1995,
without prior notice, and with total disregard for the
appropriate measures being taken by the Executive Committee,
defendants caused concrete traffic barriers to be
(1) placed
across Pennsylvania Avenue, closing the street to traffic from
15th Street to 17th Street,
(2) closing Madison and Jackson
Places to vehicular traffic, and
(3) enclosing all of Lafayette
Park.
15. It has been widely reported that defendants intend to
cause major changes to the physical structure of the area
5
enclosed by the aforesaid concrete traffic barriers, including
the construction of a fence surrounding Lafayette Park, and
closure of the park at night.
16. Defendants' have committed sufficient irregularities to
permit the average citizen reasonably to question the legality of defendants' actions. For example, a May 23, 1995 Washington
Times editorial, "1600 Pennsylvania Something" described
defendants' obstructive actions as "a fait accompli, imposed by
presidential decree and carried out in the dead of night."
Exhibit 3.
17. Notwithstanding a strong prima facie presumption that
the closing of Pennsylvania Avenue might serve a substantial
security interest, owing to the procedure-less process by which
defendants' unprecedented closure was accomplished, it is not
possible to know whether the street closing does indeed serve a
rational and/or legitimate government interest.
18. Separate from the closure of Pennsylvania Avenue
defendants have also enclosed of the entire Park with concrete
barriers.
19. Exclusive of the Pennsylvania Avenue closing, and given the procedure-less process by which defendants'
unprecedented enclosure of Lafayette Park has been accomplished,
it is not possible to know whether the concrete barriers
presently surrounding the Park serve any rational and/or
legitimate government interest.
20. The 1600 block of Pennsylvania Avenue is approximately
90 feet wide. Since the closing on May 20, 1995 that section of
pavement has regularly been thronged by pedestrian traffic,
6
skaters and bicycles without interference from police. Groups of
skaters have played hockey on skates, leaving ample room for
police vehicles to navigate the street without conflicting with the hockey game.
21. The closed section of Pennsylvania Avenue is District
of Columbia property, subject to D.C. law, and, therefore, under
the jurisdiction of the D.C. Metropolitan Police.
22. In the afternoon of May 26, 1995 plaintiff Thomas
placed a sign on the pavement of the closed section of
Pennsylvania Avenue. The sign did not present an obstruction of
any kind.
23. After the sign was on the pavement for approximately
thirty minutes plaintiff was approached by defendant Radzilowski,
accompanied by Officer R.N. Smith, both D.C. Metropolitan Police
officials. Captain Radzilowski stated that plaintiff would have
to remove the sign from the street because the street was
District of Columbia jurisdiction.
24. Plaintiff told defendant Radzilowski that, based upon
previous consultation with the D.C. Corporation Council's office,
lawful demonstrations on D.C. public property are legally
protected under the First Amendment, provided they do not create
an obstruction to traffic.
25. Defendant Radzilowski responded to the effect that if
plaintiff did not remove his sign from D.C. jurisdiction, he
would be arrested.
26. Plaintiff inquired as to the legal authority upon which
defendant Radzilowski relied.
27. Defendant Radzilowski replied "MR regulations."
7
28. Plaintiff requested to know the specific regulation under which defendant claimed authority to remove a lawful
demonstration from public space.
29. Defendant Radzilowski stated, "I'm ordering you to
remove it."
30. Plaintiff requested that Captain Radzilowski at least
confer with the D.C. Corporation Council before arresting him.
31. Defendant told plaintiff that plaintiff could "confer
with the judge" if he didn't move his signs
32. Plaintiff reiterated his belief that in the absence of
any specific prohibition against his sign being on the pavement,
defendant Radzilowski had no legal authority to issue such an
order, and plaintiff had no obligation to obey an unlawful order.
33. During the time the aforesaid discussion was transpiring
Captain Radzilowski also discussed plaintiff's pending arrest
with agents of the Secret Service.
34. Eventually, pursuant to the direction of defendant
Radzilowski, plaintiff was arrested, by Officer Steven Hebron,
and charged with "Fail(ure) to obey a police officer."
35. Subsequently, it appears, defendants have purported that defendant Radzilowski's order to plaintiff was authorized pursuant to D.C. Municipal Regulation 24 DCMR 24.101. Exhibit 5
36. On it's face D.C. Municipal Regulation 24 DCMR 24.101 does not prohibit the conduct in which plaintiff was engaged and for which defendant Radzilowski ordered plaintiffs' arrest.
ALLEGATIONS
COUNT ONE
Incorporating by reference paragraphs 1,2,3,7,8,15 and
8
18 plaintiff alleges, defendants plan to replace the temporary barriers that have
surrounded Lafayette Park since May 20th into a more permanent
barrier. Such a transformation would convert the symbol of "open
government" into a symbol of closed government and chill, disrupt or terminate the exercise of plaintiff's constitutionally-protected expressive religious activities in the world's premier
public forum, in violation rights and privileges guaranteed
plaintiff, and the class under the First Amendment.
COUNT TWO
Incorporating by reference paragraphs 1, 2, 3, 7, 8, 15 and 18 plaintiff alleges, the "Quality" of plaintiff's expressive "symbolic vigil" depends on the "quantity" of his round-the-clock "symbolic vigil" in the public forum. The Supreme Court has discussed "quantity and quality" of expressive and held that the Ninth Amendment required "exacting scrutiny" to balance equality of speedh for wealthy and poor. Buckley v. Veleo, 424 U.S. 1. Any closure or diminution of access to Lafayette Park will
violate the unenumerated right to remain undisturbed in a public
park, guaranteed plaintiff under the Ninth Amendment of the
Constitution.
COUNT THREE
Incorporating by reference paragraphs 1, 2, 3, 8, 14, and 15-20 plaintiff alleges, Defendants' actions restricting access to the areas
closed on May 20th violate the APA requirements, codified at 5 USC 553(b), that a proposed rulemaking be published inthe Federal Register.
9
COUNT FOUR
Incorporating by reference paragraphs 1,2,3,7,8 and 15-20 plaintiff alleges, defendants' actions in restricting access to the areas
closed on May 20th violate APA requirements, codified at 5 USC 553(c), for public comment on
proposed regulations.
COUNT FIVE
Incorporating by reference paragraphs 1,2,3,7,8 and 15-20 plaintiff alleges, defendants' actions in restricting access to the areas
closed on May 20th violate the APA requirements, codified at 5 USC 553(d) that a final
rulemaking be published in the Federal Register.
COUNT SIX
Incorporating by reference paragraphs 1,2,3,7,8 and 15-20 plaintiff alleges, defendants' actions in restricting access to the areas
closed on May 20th violate the APA requirement, codified at 5 USC 553(d)(1)-(3) & (e), of a thirty day
delay of effectiveness before enforcement of a new regulation may
begin.
COUNT SEVEN
Incorporating by reference paragraphs 1,2,3,7,8 and 10-14, plaintiff alleges that, particularly in light of the facts that Lafayette Park is
symbolic of a "free and democratic nation," and "public access to
government," extremely important aspects of the American
tradition, defendants' hasty closure actions of May 20th violate
NEPA requirements regarding Environmental Impact Statements.
COUNT EIGHT
Incorporating by reference paragraphs 1,2,3, and 5 plaintiff alleges, defendants' actions in restricting access to
10
the areas
closed on May 20th violate the requirements of 36 CFR 1.5, which
govern the closure of public parks.
COUNT NINE
Incorporating by reference Defendants' actions in COUNTS
THREE - EIGHT defendants have denied plaintiff and the class of
due process guaranteed under the Fifth Amendment of the
Constitution.
COUNT TEN
Incorporating by reference paragraphs 1-17 and 19, separate from the closing of Pennsylvania Avenue,
restricting access to the Park by surrounding it with barriers
violates requirements that a government regulatory action is if they are not rational or based upon consideration or the relevant factors, and therefore, violate the "arbitrary and capricious" standard required under provisions of 5 U.S.C. § 706(2)(A).
COUNT ELEVEN
Incorporating by reference COUNTS ONE-TEN, plaintiff alleges that defendants' actions of closing sections of the Park, with the possible exception of closing Pennsylvania avenue, violates the First Amendment and the guidelines articulated by the Supreme Court in United States v. O'Brien, 391 U.S. 368.
COUNT TWELVE
Incorporating by reference paragraphs 20-36 plaintiff alleges the arrest of plaintiff by order of Defendant Radzilowski deprived plaintiff of rights guaranteed under the First Amendment
of the Constitution.
COUNT THIRTEEN
Incorporating by reference paragraphs 20-36 plaintiff
11
alledges the arrest of plaintiff by order of Defendant Radzilowski was arbitratry and capricious and deprived plaintiff of rights guaranteed under the First Amendment of the Consititution
COUNT FOURTEEN
Incorporating by reference paragraphs 20-36 the arrest of plaintiff by order of Defendant Radzilowski
deprived plaintiff of rights guaranteed under the Fourth
Amendment of the Constitution.
COUNT FIFTEEN
Incorporating by reference paragraph 36 plaintiff alledges that, even assuming D.C. Municipal Regulation 24 DCMR 24.101 might be construed to facially prohibit the conduct in which plaintiff was engaged, plaintiffs's conduct was protected under the First Amendment (United States v. O'Brien, 391 U.S. 368), plaintiff's arrest for having his sign on the closed
street, while skaters,
bicyclists, and pedestrians were not disturbed by police for
occupying space on the same closed street, was arbitrary and capricious and deprived plaintiff of
rights guaranteed under the First Amendment of the Constitution.
COUNT SIXTEEN
Incorporating by reference paragraphs 20-36 plaintiff alledges that the arrest of plaintiff for having his sign on the closed
street, under the order of Defendant Radzilowski, while skaters,
bicyclists, and pedestrians were not disturbed by police for
occupying space on the same closed street, was arbitrary and capricious and deprived plaintiff of
rights guaranteed under the Ninth Amendment of the Constitution.
12
NECESSITY FOR RELIEF
It is necessary that relief be granted to insure that democracy is not crushed in an environment ofpolice discretion unbridled by law. The requested relief will not harm the defendants. It will simply maintian the status quo by continuing to allow a condition which has produced no ill effects since at least as early as June 3, 1981
Plaintiff believes testimony and evidence at trial will show
that in restricting access to the areas within the traffic
barriers erected on May 20, 1995, without regard to due process,
defendants have treated the public street and park as if it were
their own private property.
At issue here is the baseline status quo. First, as
President Clinton stated in announcing the new security measures,
this is "the first time since the beginning of the Republic that
this street has been closed."
The status quo relies heavily on the presumption
that the government will abide by the law. The facts of this
complaint illustrate that defendants have violated that
presumption.
Finally, in arresting plaintiff for displaying signs in a
public place manner, without serving any legitimate interest,
defendants deprived plaintiff, and others, of First, Fourth and
Ninth Amendment rights.
Clearly there has been a suspension of traffic regulations in the closed section of Pennsylvania Avenyue, if police were enforcing regular traffic regulations they wouldn't be allowing the activity that is going onwith roller skaters, and your guides educating their audiences in the middle of the street.
13
Since tour guides are permitted to use the street to speak
with impunity, and for monetary gain, educating their audiences
about the number of bathrooms and elevators in the White House,
certainly plaintiff must be allowed to use the same street to
address the public on issues of broad public concern.
No regulations prohibit the exercise of First Amendment
activities in the closed section of Pennsylvania Avenue. In this
case the D.C.M.R. "failure to obey a police officer" regulation
(and/or D.C.M.R 24.101) has been used to "vest() unbridled
authority in the hands of the polic as to who they arrest or not
arrest, or who they exclude or don't exclude. Decisions are made
on a case by case basis, rather than according to a general rule"
smf "members of the public have no way of knowing whether they
might be in violation of the law, or how they may avoid
violation, except by prior experience.... 'This does not provide
for government by clearly defined laws, but for government by
moment to moment decisions of a policeman, which is clearly
unconstitutional'." United States v. Nicholson, 87 WDLR 1213,
1216; affr'md 263 A.2d 56 D.C. Appellate (1970).
"The critical question in balancing things is whether the
manner of the expression is compatable with the normal activity
of the place at that time....." Graynard v. City of Rockford,
408 U.S. 104, 116 (1971)
"The mere fact that speech is accompanied by conduct does
not mean that speech could be surpressed under the guise of
prohibiting the conduct.' Food Employees v. Logan Plaza, 391
U.S. 308, 323.
The importance of free and open public spaces is well
14
established. Suppression of First Amendment exercise has been
held to constitute "irreparable injury," Elrod v. Burns, 427
U.S. 347, 373 (1976), and to constitute "substantial ...
damages." City of Watseka v. Illinois Public Action Council, 796
F.2d 1559, Summarily Affirmed by the Supreme Court, slip opinion
86-631, January 27, 1987.
"From time immemorial" parks have been recognized as "public
forums." Hague v. C.I.O, 307 U.S. 496 (1939). In this circuit
Lafayette Park has repeatedly been recognized as a "unique public
forum." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984); United
States v. Sunrise, 707 f. Supp. 295 (1988).
At issue here is the baseline status quo. As President
Clinton stated in announcing the new security measures, this is
"the first time since the beginning of the Republic that this
street has been closed."
"The right to speak freely and to promote diversity of ideas
and programs is ... one of the chief distinctions that sets us
apart from totalitarian regimes." Terminiello v. Chicago, 337
U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745
(1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry,
485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482
U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v.
C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at
411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v.
O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551
(1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v.
Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980);
Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318
15
U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).
"The extraordinary nature of these charges makes this an
easy case. Whatever authority the Government may have to
interfere with a group engaged in unlawful activity, and however
it may be permitted to impede or deter rights of lawful
association as a by-product of legitimate Government actions, it
is never permissible to impede or deter lawful civil
rights/political organization, expression or protest with no
other direct purpose and no other immediate objective than to
counter the influence of the target [expressor]." Hobson v.
Wilson 737 F.2d 1, 27 emphasis in original, [substituting], see
also, Dombrowski v. Pfister, 380 U.S. 479, 482.
PRAYER FOR RELIEF
WHEREFORE plaintiff hereby prays the Court to issue an Order
to permanently enjoin defendants from
(1) erecting any fence,
wall or other obstruction which would unnecessarily or
illegitimately restrict access to the (symbol of our free and
democratic nation) Park,
(2) closing the Park for periods during
the day or night
(3) arresting plaintiff, or others, for engaging
in lawful First Amendment activity under color of D.C.M.R.
"failure to obey an officer regulation, or any other D.C. or
Federal Regulation, and, if testimony and evidence adduced at
trial so indicates (8) if testimony and evidence adduced at trial so indicates from closing Pennsylvania Avenue, and the award punitative and compensatory damages; or such other relief as the court may deem appropriate.
A motion for preliminary injunction accompanies this complaint.
Respectfully submitted this 5th day of June, 1995,
___________________________________
William Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757
CERTIFICATE OF SERVICE
On June 5, 1995, I caused a copy of the foregoing Amended Complaint
and Petition For A Preliminary Injunction to be served,to the office of the United States Attorney for the
District of Columbia at 555 4th Street NW, Washington, D.C., and
upon the office of the Corporation Council for the District of
Columbia, Civil Division, at 441 4th Street NW Washington, D.C. 20001.