Memorandum

3. FEDERAL DEFENDANTS

"Based on the Review's recommendation, and pursuant to statutory authority, on May 19, 1995, Secretary of Treasury Robert E. Rubin ordered that:

"The Director, United States Secret Service, is directed to close to vehicular traffic ... the segment of Pennsylvania Avenue ..., in front of the White House ..." F.D. Defts' Memo, pg. 10.

4. A MEETING OF THE MINDS

"Moreover," counsel proceeds to argue,

"While this arrest was carried out by District of Columbia police officers, federal defendants note that plaintiff was arrested only because he placed his structure in a closed (at the order of defendant Secretary of Treasury) portion of Pennsylvania Avenue, in violation of 24 D.C.M.R. 100.1." Id. 17.

In the face of counsel's jurisdictional differentiation, Secret Service actions contradict his assertion. On May 22, 1995, plaintiff alleges, in addition to defendant

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Radzilowski's involvment with the sign, three Secret Service agents also threatened to arrest Matteo Fareirra for placing the same sign on the closed section of Pennsylvania. Pl's Facts ¶ 43.

In the past few paragraphs we can trace a chain that links defendant Rubin, defendant Secret Service, defendant Radzilowski, Officer Hebron and three unidentified Secret Agents, to a common interest in plaintiff's sign.[19]

Given the coincidential common interest in plaintiff's sign one might reasonably infer the possibility of a monstrously complex case of deception, implemented by unjustified force, violence, abuse of judicial process.

While there may be no direct evidence that, by closing Pennsylvania Avenue on May 20th, federal defendants' specifically intended to restrict First Amendment activity, or cause plaintiff's arrest under color of a minor D.C. traffic regulation on May 26 th, 1995. Nevertheless, plaintiff's arrest, and the threatened arrest of two other people, illustrates that federal defendants' actions, if not explicitly intended for that purpose, might readily facilitate that impermissible side effect.

"Petitioner argued that although she had no knowledge of an agreement between (defendant) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at

[19 By analogy, the case of Rizzo v. Goode, 423 U, S. 362 (1976), is relevant. In that case, a suit for injunctive relief against alleged police misconduct under section 1983. The Supreme Court, in dictum, suggested that evidence of an affirmative link between the occurrence of various incidents of police misconduct could indicate the adoption of a plan or policy by government officials, showing their authorization or approval of such conduct, See also discussion of Rizzo in Popow v. City of Margate, 476 F. Supp. 1237, 1245 (D. N. J. 1979).]

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157, Leatherman v. Tarrant County, 113 S. Ct. 1160, 1162 (1993).

In ruling on a motion for summary judgment, a court must review the evidence proffered to determine if it presents a sufficient disagreement to require submission to the factfinder or is so one sided that one party must prevail as a matter of law. Liberty Lobby, supra. Here the bald assertions of the federal defendants that no conspiracy existed to deprive plaintiff of his First Amendment rights, that probable cause existed to arrest him over the display of a sign in a place "open to the general public, and that no less restrictive means of securing unobstructed emergency vehicles, [20] are not sufficient to rebut plaintiff's detailed allegations, supported by declarations,. Thus, there are genuine issues of material fact in this case which would preclude granting defendants' motion for summary judgment.

G. CLAIMS FOR INJUNCTIVE RELIEF

Whatever the Court may decide with respect to defendant Radzilowski's good faith defense, or his shared interests and shadowy intrajurisdictional connection with Federal Defendants, injunctive relief encompasses a broader issue.

Although defendants suggest that because they "have filed a dispositive motion, plaintiffs motion for a preliminary injunction is largely moot" (Fed Defts' Memo, pg 32), ther motion does not dispose of plaintiff's injunctive claims.

"Federal injunctive relief traditionally is presumed available against actors committing constitutional violations. This is true regardless of whether or not the plaintiff may also have a Bivens action for damages." See, Reuber v.

[20 Assuming, arguendo, the existence of some rational concern for emergency vehicle obstruction by a four foot sign in a seven lane paved area open to the general public can be shown.]

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United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984). The Reuber Court also noted that on numerous occasions prior to Bivens, the Supreme Court had permitted suits for injunctive relief brought directly under the constitution for violation of plaintiff's constitutional rights, citing as examples, Bolling v. Sharpe, 347 U. S. 497 (1954); Philadelphia Co. v. Stimson, 223 U. S. 605 (1912). The Court also cited Bell v. Hood, 327 U. S. 678, 684 & n.4 (1946). See also Jorden v. National Guard Bureau, 799 F.2d 99, 111 n. 17 (1986); Founding Church of Scientology v. Webster, 802 F.2d 1448, 1449 (D. C. Cir, 1986).

Today, riding on "ample alternative means of communication" encroachments, the government argues, that "a substantial government interest" has degenerated to a point where the government, for fear of "vehicle carried bombs," closes a street to "vehicular traffic," causing a fear of obstructing traffic, which justifies arresting plaintiff for putting a sign in an area "open to the general public" (Fed. Defs' Memo, pg 19), and a federal court solemnly entertains the complicated notion.

Even assuming that defendants did not intentionally aim at further curtailing public use of the Park there is no hard evidence that they have seriously considered the consequences of their actions on that important Park useage. [21]

H. THE GENIUINE ISSUE OF VACUUMS

Counsel insists the decisions which preceded this complaint "to restrict access to general public vehicular traffic did not occur in a vacuum" ( F.D. Defts' Memo, pg. 5), but has little of evidentiary value to support the claim.

Most troubling is defendants entertain the notion that they have "legal

[21 Defendants' Background Security Review makes specific reference to a number of police agencies involved in the planning to close the areas at issue, with one brief reference to "organization interested in public access." Defts' Exhibit B, at 22. Plaintiff was not consulted, and defendants don't explain exactly what "interest" the in "public access" the organizations they did contact had.]

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authority" to limit or eliminate whatever they may decide-- in "emergency" situations, of course -- might need to be limited or eliminated. Incongruous as it may seem coming from the lips of agents professing to labor against "threats to the free world," the record shows defendants believe they may supersede "local and federal lawss". Pl's Facts ¶ 10, see also, Exhibit V.T., segment 5, @ 1m 22s -0 2m 27 s.

"It is not consistent with the policy of our political institutions, or the manners of the people of the United States, that any ministerial officer, having public duties to perform, should be above the compulsion of the law, in the exercise of those duties." Marbury v. Madison, 1 Cranch 149.

Nothwithstanding the government's professed commitment to provide both security and public access (Exhibit V.T., 0MS 27S - 0MS 37S), it is the duty of the judicial system to balance those interests so crucial to the existence of any free and democratic society. [22]

[22 Because principles are timeless, history may seem to repeat itself. For example, after Adolph Hitler was elected Chancellor of Germany in 1932, he gained the power to promulgate and enforce the laws of that nation. In February, 1932 the Reichstag Building, seat of the German government, was gutted by a mysterious fire. Gobbels, the Information Minster of Hitler's political Nazi Party, spread the idea that the fire had been started by a rival idological party. On the wave of public hysteria following the Nazi propaganda blitz, the German Reich passed Hitler's proposed National Security Act of 1933. That legislation legitimized the acts which later resulted in criminal charges against Nazis who enforced them. At the criminal trials, which began in Neuremburg, Germany in 1947, the accused plead that they weren't guilty of any crime, because they had only been enforcing the law of their country. The Neuremburg Court disagreed, holding that the Nazis acted like criminals.

NOTE: Although it has never been determined with certainty how the blaze originated, many contemporary historians agree the Nazis actually started it. Even if the S.S. wasn't responsible for planting the bomb in Oklahoma City, fearful, poorly thoughtout "security" measures could still strangle democracy. ]

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1. SECURITY UBER ALLES ?

After defendants declare they have the authority to put themselves above the law, counsel appends a couple of inaccurate maps to a Memorandum which claims "concrete barricades" are not a "concrete controversy" (Fed Defts' Memo, pg. 3), and sends the Court a Security Background Review, explaining,

"While the Review cannot reveal publicly the details of many of its' findings, he Department of Treasury has made every effort to assure the throughness and objectivity of the Review." Fed Defts' Exhibit B, pg. 26

What's there to discuss here? Is plaintiff imagining it, or are defendants effectively unaccountable to the law?

By analogy, assume that because a security agency fears a terrorist might bring a nuclear weapon into New York City in a steamer trunk, security force closes down the City, writes a secret report to explain why they did it, and then argues that their actions are above judicial review.

Plaintiff submits that defendants cannot be allowed to take actions of this magnitude unless there are no longer checks and balances in this country.

(a) OTHER CONCERNS RAISED BY DEFENDANTS' ACTIONS

As has been correctly stated, the " petition now before the court () is styled as a class action on behalf of all of the people of the United States." Tr. pg. 46. Plaintiff apparently isn't the only one who feels as if the actions complained of took place in a vacuum.

Newspaper and television news took notice of the "historic" significance of closing the "Symbol of Openness." E.g., Exhibit V.T., Segments 1-5, @ 0m 10s - 2m

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23s, Exhibit 1, and Pl's Facts, ¶ 12.

Rumor of the closure provoked immediate bipartisan opposition: Plaintiff's Exhibit 2, and Pl's Facts, ¶ 13.

Barricades were reportedly bad for business. Washington Post, May 28, 1995. Exhibit 3, and Pl's Facts, ¶ 14.

Impacts on business also provoked concern within the DC City Council, Exhibit 4, Exhibit V.T @ 1m 22s - 2m 27s, and Pl's Facts, ¶ 15.

A flurry of editorials expressed concern, e.g. "Where will we draw the line?" Pl's Exhibits 5, 6; cartoonists ridiculed exaggerated security concerns. Exhibits 7-9, and Pl's Facts, ¶ 16.

Plaintiff is not alone in challenging the substance of defendants vacuous representations. Skepicism of the openness of defendants' process has sparked more than a few intelligent questions.

NBC News reported that, Anthony Martin, "a local attorney, thought, " We have a situation where they acted in the stealth of night. A rather outrageous and improper situation. Exhibit V.T. @ Segment: 5, 1m 22s - 2m 27s

2. RESTRICTING ACCESS TO THE SYMBOL OF OUR FREE AND DEMOCRATIC NATION

"This case is not a normal review of an executive action or administrative proceeding. When the executive or the administrative process abridges constitutional rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court rather than the agency (or the cop on the beat) that must balance the competing interests. The question in this case is not whether some support for the regulations may be adduced, by reference to evidence in the record and a claim or reasonable inferences or concerns, but is whether the regulations at issue here are unnecessarily restrictive for the purpose they are designed to serve." Quaker Action Group v. Morton, 516 F.2d 717, 724.

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The area in question had been open (i.e., "unenclosed") for the entire history of the country. Pl's Facts ¶ 12.

"Certain types of places are so vital to a healthy and robust public discourse that they are accorded special status under the first amendment..... "The public sidewalk here is one such forum. Sidewalks, like streets and parks,are places whose title has 'immemorially been held in trust for the use of the public.' As such, they occupy a privileged position in the hierarchy of first amendment jurisprudence." White House Vigil for ERA v. Clark, 746 F.2d 1518, 27-28, see also, United States v, Grace, 103 S.Ct. at 1708.

For a long time it was well understood that, "the First Amendment requires the government to justify every instance of abridgement, and to do so with more than "hypotheticals." E.g., Schneider v State, 308 U.S. 147, 160 (1939). This requirement stems from the oft-stated recognition that the First Amendment was designed to secure "the widest possible dissemination of information from diverse and antagonistic sources." Associated Press v. United States, 326 U. S. 1, 20 (1945), and to assure "unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 4f6, 484 (1957); Buckley v. Valeo, 421 U. S. 1, 49 (1976); New York Times Co. v. Sullivan, 356 U. S. 254, 2~6 (1964); Whittney v. California, 214 U. S. 357, 375-378 (1927) (Brandeis, J.).

(a) ENVIRONMENTAL IMPACT STUDY

Consistant with traditions of democratic government responsible to its citizens and the law, the Executive Committee for the Comprehensive Design for the White House and President's Park had already scheduled an Environmental Impact Statement to study the effects of tinkering with "so vital to a healthy and robust public discourse that they are accorded special status under the first amendment." Com. ¶

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13., Pl's Facts ¶ 4.

Defendants' actions have created a major sociological, economic, and public use impacts, while circumventing the appropriate Environmental Impact Study required for projects of this magnitude, and properly slated by the Executive Committee for the Comprehensive Design for the White House and President's Park.

The Court should issue an injunction requiring defendants to comply with completion of the planned Environmental Impact Study.before any further action is taken with respect to the Park.

(b). RIPE CONCRETE BARRIERS

Incredibly, in the face of concrete barriers, defendants assert,

"Plaintiff's speculation concerning any future action regarding the streets restricted on May 20, 1995, and the security borders in Lafayette Park clearly run afoul of the ripeness doctrine. Plaintiff does not allege that any such final action has been taken; indeed, none has. Thus the Court has no concrete controversy before it to adjudicate concerning these allegations." Fed Defts' Memo, pg. 3.

Except for the brief arguments in their Memo, nothing in defendants' filings appears to mention the concrete barriers surrounding Lafayette Park since May 20, 1995. Com. ¶ 14, Pl's facts ¶ 17. [23] But plaintiff's Exhibit V.T. @ Segment: 6, 2m 24s - 6m 43s, shows that the barriers are there. Sure as you can tell there's an elephant in your bathtub when you see him washing his back with his trunk and smell the peanuts on his breath, you know you have a concrete issue when you see

[23 It appears, from the maps (infra, Misleading Maps), Federal Register publications, and the Security Background Report that accompanying defendants' pleadings, one would never guess there were any concrete barriers surrounding Lafayette Park. ]

concrete "barriers" surrounding Lafayette Park for the first time in the nation's history..

"However," as it the barriers weren't there, defendants maintain,

"Lafayette Park remains completely unchanged and entirely open to the public, both day and night." Fed Defts' Memo pg. 4.

Plaintiff maintains that "enclosed" is "not open."

Finally, defendants profess,

"More importantly, despite plaintiff's suspicions to the contrary, there is no present intent to enclose Lafayette Park or close the Park, in full or partially, to public access." Id.

Since the barricades are already in place around the Park, where they had never been before, that concrete issue is final and ripe enough to talk about.

If only by virtue of the changes they've already made, and notwithstanding affirmations that they have "no present intent to enclose Lafayette Park," the fact that the Park is enclosed by concrete barricades makes the issue of whether defendants should be permitted to make further changes also a mater ripe for discussion about a preliminary injunction. It would seem that absent a factual that they haven't done anything, there are conveivable possibilities that the Court might enjoin them from doing more of whatever they've already done.

On May 20, 1995, without prior, or, to date, any public notice, and again with total disregard for the appropriate measures being taken by the Executive Committee, defendants also caused concrete traffic barriers to be positioned to enclose all of Lafayette Park. Fed Defts' Memo, pg. 4; Complaint para. 12,

Nothing beyond the supported arguments in Federal Defendants' Memorandumon the record of this case makes any connection between "security" and

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the barriers obstructing access to Lafayette Park.