DC Memorandum in Support of Motion to Dismiss


William Thomas, et. al.       |   
      Plaintiffs pro se,      | 
       v.                     |          C.A. No. 95-1018
                              |       Judge Charles R. Richey
The United States, et. al.    |      
      Defendants.             | 



Plaintiff, William Thomas, has since 1981 "regularly maintained a continuous presence on the White House sidewalk and southern part of Lafayette Park. Plaintiff’s Complaint for Declaratory and Injunctive Relief, p. 2 [hereinafter Comp.]. Lafayette Park is bordered on the South by Pennsylvania Avenue and is directly across from the White House. As part of his vigil, plaintiff has constructed a wooden platform measuring 4' by 4' by 4' high which, inter alia, supports four wooden signs conveying plaintiff's political messages . His platform also includes a seating area, complete with back, upon which Mr. Thomas and his wife may sit, rest, and converse with passersby. Transcript of hearing for TRO, May 30, 1995, p. 49 [hereinafter Trans.]. Mr.


Thomas feels it is necessary for him to maintain a twenty-four hour presence upon this construction. Comp. p. 2, This substantial wooden construction is not easily or readily moved, as it requires two adult males to drag. Trans. 29,30.

Mr. Thomas has had a permit to maintain this structure on which he maintains an almost continual presence. The permit is issued by the National Park Service, and permits location of the wooden structure only in Lafayette Park. Trans. 8.

Pennsylvania Avenue has been a major traffic thoroughfare, open to vehicular traffic. It is within the exclusive jurisdiction and control of the District of Columbia. D.C. Code § 7-102, Trans. 45-46.

On May 20, 1995, pursuant to Treasury Order 170-09, the 1600 block of Pennsylvania Avenue, immediately north of the White House grounds and the corresponding street on the south side of the White House were closed to regular vehicular through-traffic "in order to secure the perimeter of the White House [and ensure the protection of the President and others in the White House Complex from explosive devices carried by vehicles near the perimeter." Treasury Order 170-09. Attachment 1.

Pennsylvania Avenue remains open to some motor traffic, including motorcades and emergency vehicles such as firetrucks, police vehicles, and ambulances operated by the District of Columbia. Trans. 35,36. Emergency vehicles have had to use the 1600 block of Pennsylvania Avenue since the closing to nonemergency vehicles. The 1600 block of Pennsylvania Avenue also


remains open to pedestrian traffic. Trans. 5,37.

Pennsylvania Avenue, including the 1600 block, remains under the jurisdiction and control of the District. Only the Council of the District of Columbia has authority to permanently close a street, avenue or alley in the District. D.C. Code Ann. § 7-101, 7-411, et sec(. The Council has taken no action to permanently close the 1600 block of Pennsylvania Avenue. The laws of the District of Columbia, including its laws and regulations concerning public space and traffic regulation, remain in effect. The Metropolitan Police Department continues to have jurisdiction and authority in this area. These laws and regulations require a permit for use or occupation of public space, and prevent the obstruction of traffic. D.C. Mun. Regs . tit. 24 sec. 100.1 [hereinafter D.C.M.R.].

On May 26, 1995, Mr. Thomas and another adult male dragged Mr. Thomas' wooden structure from its placement within Lafayette Park into the street in the 1600 block of Pennsylvania Avenue. Mr. Thomas then resumed his perch atop the wooden structure, Trans. 27. He did not have a permit to move or place this structure on the street. Trans. 8,9. Captain Radzilowski of the Metropolitan Police Department observed Mr. Thomas move his platform. Captain Radzilowski is assigned to the Special Operations Division of the Department, and he was in Lafayette Park on the day of plaintiff's arrest to discuss movie making.

Capt. Radzilowski did not immediately intervene after he observed plaintiff and another man drag Mr. Thomas' platform into


the street, as he was meeting with Secret Service representatives. Upon completion of that meeting, he requested that Mr. Thomas move the platform from the street. Capt. Radzilowski told Mr. Thomas that the placement of his platform on Pennsylvania Avenue was in violation of D.C. Law and Regulations. Comp. par. 21,25, Trans. 31. When Mr, Thomas objected, Radzilowski warned Mr. Thomas that he would be arrested if he did not comply. Mr. Thomas refused to obey Captain Radzilowski's repeated request to move the platform. Thereupon Mr. Thomas was arrested for failure to obey a police officer. Comp. par. 23,28.[1]

The District requires a permit to occupy public space. No permit can be issued if the use will "endanger the public" or "substantially interfere with pedestrian or vehicular traffic." 24 D.C.M.R. sec. 100.1. A permit is also needed to set up a camp or any temporary place of abode (Sec. or to "deliver any address, speech or sermon on any subject whatsoever in or upon any street . . . or other public space." Sec. 700.1. Mr. Thomas had not sought and did not have a permit for placement of his platform on Pennsylvania Avenue. Trans. 8,9.


Defendants show below that summary judgment ought to be granted to the defendants. A party is entitled to summary judgment as a matter of law if there is no genuine issue as to any material

[1 There are two paragraphs numbered "28" in the complaint. Both are cited here.]


fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). There can be no genuine issue of material fact within the meaning of Fed. R. Civ. P, 56(c) where there has been a complete failure of proof concerning an essential element of the non-moving party's case. Id. at 323. Defendants show below that no genuine issue of material fact exists in this case. Defendants also submit these arguments in support of their opposition to plaintiff's motion for a preliminary injunction. The four factors to be considered in determining whether plaintiff is entitled to the extraordinary relief of a preliminary injunction have been enunciated by the U.S. Court of Appeals in Va. Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958).

These factors are: 1) whether the moving party has clearly demonstrated that there is a substantial likelihood of its success on the merits; 2) whether the moving party has clearly demonstrated that it will suffer irreparable injury absent the requested relief; 3) whether more harm will result to the movant without the relief than will occur to the opponent if relief is granted, and 4) whether the public interest will be better served by issuance of the injunctive relief. Td.

1. Irreparable Harm

Plaintiff cannot show irreparable harm from denial of preliminary injunctive relief against the District Defendants. He can and has moved his platform back to Lafayette Park and resumed


the vigil he has maintained since 1983. Plaintiff will still have ample opportunity to exercise his First Amendment Rights absent preliminary injunction. See White House Vigil for ERA Comm. v, Clark, 746 F.2d 1518 (D.C. Cir 1984) (Protesters precluded from engaging in stationary protest on sidewalk in front of White House did not suffer substantial harm).

2. Balance of Harms and Public Interest

The balance of harms favors denial of injunctive relief. Any potential harm to plaintiff is speculative and almost immeasurable. He will still be able to continue his vigil and exercise his First Amendment rights just a few short feet away from the street where he improperly seeks to set his platform. Moreover, the alternative spot available to him has proved satisfactory for almost twelve years. Denial of the requested relief will not harm plaintiff.

On the other hand, the government may suffer harm if it is unable to enforce its legitimate and reasonable street regulations. The 1600 block of Pennsylvania Avenue remains open to pedestrians, and is an important street for passage of emergency police, fire, and ambulance vehicles. Overturning the District's traffic and public space regulations to allow the placement of one or many structures such as plaintiffs will impede the passage of such emergency vehicles. This substantial harm is sufficient to warrant denial of the requested relief no matter where on Pennsylvania Avenue plaintiff sought to place his platform.

The fact that the plaintiff seeks to place his platform in


front of the White House only underscores the harm to the government's interest if plaintiff is permitted to obstruct the street. The street has been cleared of all other vehicles as a necessary security measure to protect the President and White House occupants. It makes no sense to permit placement of structures in this zone, especially if they might block or impede emergency vehicles, This is true whether the vehicles are trying to reach the White House or only pass through the street. The harm to the defendants in permitting placement of this obstruction in the otherwise cleared zone in front of the White House far outweighs any articulable harm to plaintiff in requiring that he move his platform to its original position.

Similarly, the public interest is better served by avoiding any impediment in usage of the street by police, fire, or emergency vehicles and in maintaining the security measures unfortunately deemed necessary by the Secret Service in front of the White House.

3. Likelihood of Success on the Merits

Plaintiff cannot clearly establish the likelihood of his success on the merits of this case. Mr. Thomas asserts three[2] counts against District Defendants in his complaint. Comp. Counts

[2 Counts 11 and 12 are identical, and hereinafter referred to as count 12. Comp. p. 10-11.]

[3 All claims against Captain Radzilowski should be dismissed. As a law enforcement officer, Captain Radzilowski is entitled to the protection of a good faith and reasonable belief defense against claims of violations of constitutional rights. See Bivens v. Six Unknown Named Agents of the FBI, 456 F.2d 1339 (2d Cir. 1972). Captain Radzilowski's arrest was executed in good faith and was reasonable. See infra p. 17-18.]


12-14. Plaintiff claims that District Defendants deprived him of his First Amendment, Fourth Amendment, and Ninth Amendment Rights.[4] These three claims are not supported by the facts of this case. The arguments set out below show why summary judgment ought to be granted to the District Defendants as a matter of law. They also support the District's claim that plaintiff is not entitled to injunctive relief as there is no likelihood of success on the merits.