versus                        )  CA 88-3130-JHG
                                        )  Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al.,          )
                   defendants           )


Plaintiffs incorporate by reference the Complaint, and Declaration of William Thomas in Support of the Complaint, filed September 30, 1988; Amended Complaint, and Declaration of Concepcion Picciotto in Support of the Amended Complaint, filed November 23, 1988; Clarification of Complaint ("CoC") (see also, the Cross Reference), filed January 17, 1989; the Appendix ("APPENDIX Exhibit"), filed January 17, 1989; and the Declarations of Concepcion Picciotto, William Thomas, Joseph Vigorito, Michael Cronin, Stacey Davis, and Jeffrey Brown (Exhibits 1-6 respectively), filed herewith.

Respectfully submitted,

William Thomas
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038

November 21, 1989

A. 36CFR 7.96 (g)(5)(x)(B)(2) Was Improperly Issued...
1) The Regulation Was Unnecessary
2) It Leaves No Alternative For Communication
B. The Regulation Was Falsely Promulgated
C. Defendants Engaged In An Impermissible Scheme
D. The Regulations Are Unconstitutional
E. 36CFR7.96 (g)(5)(x)(B)(2) Has Been Unconstitutionally Employed
F. Stare Decisis Is Not Fact

(Cases primarily relied upon are marked by an astrik (*).)
Aptheker v.Secretary of State,378 U.S.5006
*Baggett v. Bullitt, 377 U.S. 3606
*Bivens v. Six Unknown Agents, 403 U.S. 388 (1970)6, 7, 9
*Brown v. Louisana, 383 U.S. 13118
Butz v. Economou, 438 U.S. 479 (1978)9
*Cantwell v. Connetticut, 310 U.S. 30314
Carroll v. Commissioners, 393 U.S. 175 (1968)13
CCNV v. Clark, 468 U.S. 290 (198 (1982)10
Davis v. Passman, 442 U.S. 2287
*Dombrowski v. Pfister, 380 U.S. 478 (1965)3, 15, 16
Elrod v. Burns, 427 U.S. 347 (1976)18
ERA v. Clark, 746 F.2d 1528, D.C. Ca. No. 32-12437, 10, 11, 13, 16, 18
Ex parte Young, 209 U.S. 1233, 7
Garrison v. Louisiana, 379 U.S. 646
Glasson v.City of Louisville, 518 F.2d 904 (6th Dist. 1977)17
Heisler v. Thomas, 260 U.S. 24516
*Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1981)9
In re Halkin, 598 F.2d 176, 199 D.C. cir. 197918
Knights of the KKK v. East Baton Rouge, 587 F.2d 112218
*Marbury v. Madison, 5 (1 Cranch) U.S. 137 (1803)7
*Morrill v. Jones, 106 U.S. 4677
Murdock v. Pennsylvania 319 U.S. 105,5
NAACP v. Button, 371 U.S. 4156
New York Times v.United States, 403 U.S. 713 (1971)6
Quaker Action Group v. Morton, 460 F.2d 854, 860 (1971)6
Quaker Action Group v. Morton, 516 F.2d 717, (1975)6, 14
Saffron v.Wilson,481 F. supp. 22817
Schad v. Mt.Ephraim, 425 U.S. 61 (1981)13
Schneider v. State, 308 U.S.14712
Smith v. California 361 U.S. 1476
*Texas v. Johnson, 109 S. Ct. 2533 (1989)9, 13, 14, 17
*Thomas v. Review Board 450 U.S. 7075
Thomas v.United States, USDC CA. 84-355211
Thomas v. United States, 696 F. Supp. 70116
Thornhill v. Alabama, 310 U.S. 886
United States v. Abney, 534 F.2d 98414
United States v. Greenburgh, 453 U.S. 114, 133 (1981)7
*United States v. O'Brien, 391 U.S. 36712
*United States v. Picciotto, ___ F.2d ___18, 19, 20
United States v. Raines, 362 U.S. 176
United States v. Thomas, 684 F.2d 18816
United States v. Thomas, 575 A.2d 129617
Virginia Petroleum Jobbers v. PPC, 259 F.2d 9213
Women Strike for Peace v. Morton, 472 F.2d 1273, 1289 (1972)6
WMATA v. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977)3
Flag Desecration, 88 Harv.L.Rev. 1482, (1975)13
5 USC Sec. 559, Historical and Revision Notes7
36 CFR 7.96 (g)(5)(x)(B)(2)8
36 CFR 7.96 (i)(1)14
36 CFR 7.96 (g)(2)(i)5
Federal Register, June 4, 198214
Federal Register, August 20 19858
Federal Register, March 5, 19859, 11



Owing to a religious belief that they must devote their lives to being peacemakers, Concepcion Picciotto and William Thomas each began to maintain a "continuous presence" in Lafayette Park or in front of the White House since the summer of 1981. Over the years, from time to time, others have associated in similar individual efforts at the gates of the Executive Mansion for the purposes of communicating with the public on issues of broad public concern, and to gain a better understanding of the truth. Motivated by similar religious beliefs, Ellen Thomas and Sunrise S. Harmony are presently the only other named plaintiffs actively engaged in attempting to maintain a continuous presence in the Park.

As communicants of "Peace through Reason" (Complaint, para. 21(i), and Thomas' Declaration in Support of the Complaint para. 2), plaintiffs seek an atmosphere of civilized tranquility - a prerequisite to reasoned dialogue. It is a matter of fact that inebriants and assaultive persons roam the streets to terrorize and victimize in any metropolis. Although there is no "right to tranquility" for one exposed to the elements and the dangers that lurk in a city at night, the First and Fourth Amendments of the Constitution have been thought to protect the exercise of religion and expression against unjustified police intrusion. The Fifth and Fourteenth Amendments have been said to guarantee the rights of due process and equal protection to all individuals.

As "demonstrations" (infra, ftn. 2/) plaintiffs' vigils are


entitled to constitional protection. Over the years plaintiffs have obtained permits which allow the specific actions comprising their "continuous presences." See, Exhibit 1 herewith, attachment 1, Concepcion Picciotto's permits, see also, Plaintiffs' Reply to Federal Defendants' Notice to the Court, filed October 13, 1989, Exhibit A, Sunrise permits. Plaintiffs have also gone to extremes not to offend police officials. See, e.g., Declaration of Concepcion Picciotto in support of the Amended Complaint, filed November 23, 1988, para. 4. Plaintiffs are not engaged in civil disobedience. Id. paras. 2 and 3.

The relief sought in this Application and Motion is to preserve the status quo by restraining defendants from disrupting, terminating, or interfering with the harmless exercise of plaintiffs' religious beliefs and lawful public expression of views, by threats, intimidation, imprisonment, assault, false arrest, false imprisonment, seizure of property, intentional infliction of emotional distress, deprivation of association, deprivation of due process and the exercise of their freedoms of religion, communication, and association under color of various regulations which defendants have inspired, written, administered, and/or enforced. SEE, Complaint, para. 20, Amended Complaint, para. 11.

As evidenced by the Declarations of Concepcion Picciotto, William Thomas, Joseph Vigorito, Jeffrey Brown, Michael Cronin, and Stacey Davis attached hereto as Exhibits 1-6, 36 CFR 7.69(g)(5)(x)(B)(2) and 7.96(i)(1) have recently been applied to interfere with harmless communicative activity. Plaintiffs and others will suffer irreparable harm from the continued


enforcement or threatened enforcement of these regulations, and such enforcement should therefore be restrained and enjoined.

Owing to intentional overbreadth and selective enforcement, the regulations have been employed without,

"any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the (regulations) to harass appellants and discourage them and (others) from asserting and attempting to vindicate ... constitutional rights...." Dombrowski v. Pfister, 380 U.S.479 at 482; Ex parte Young, 209 U.S. 123, Compare Declaration of Concepcion Picciotto in Support of the Amended Complaint, paras. 4, 12 - 17, 18, 20.


A request for temporary relief in this Court is governed by the familiar standards of Virginia Petroleum Jobbers v. PPC 259 F.2d 921 (1958) and WMATA V. Holiday Tours, 559 F.2d 841 ( 1977). Plaintiffs are entitled to relief if they show (1) a substantial likelihood of success on the merits, (2) irreparable injury in the absence of relief, (3) that an injunction would not substantially harm the interests of others, and (4) that the public interest would be served by granting the injunction.

In the discussion below we show that these criteria are met.


This Complaint is about the progressive erosion of constitutional protection.

Testimony and evidence will establish that from the beginning defendants should have known that plaintiffs' continuous presence was harmless and protected under clearly established law. Consequently defendants would have seen the First Amendment as a "problem" which shielded plaintiffs against the application of police force directed by government officials who might want to


"ban (plaintiffs' demonstrations and protests) from the sidewalk in front of the White House and in Lafayette Park." Because such a ban was known to be an outright offense against the Constitution, defendants plotted to affect their constitutionally impermissible ban incrementally. Subsequently, in pursuit of their alleged conspiracy, defendants promulgated overbroad and needless regulations to engender a legal vacuum, thereby providing a climate in which the invidious personal predilictions and animosities of individual law enforcement agents might, as illustrated here, begin to run rampant. Amended Complaint, para. 11; Complaint, p. 5, para. 20, see also, Summarization of Complaint, filed this day, para. 24.

At issue here are several incidents, occurring between September 2 and November 10, 1989, in which various U.S. Park Police officials, acting under color of 36 CFR 7.96 (g)(5)(x)(B)(2) and 7.96 (i)(1), threatened and intimidated plaintiffs, or those thought to be associated with plaintiffs, and interfered with or disrupted plaintiffs' communication with the general public.

These incidents 1/ can be divided into three groups:

1) September 2-7. Summarization of Complaint, paras. 36-42. These police actions represent a concerted, supervised, unsuccessful effort to build a "camping" case against plaintiffs, or a successful concerted, supervised effort to harass and intimidate them under color of 36 CFR 7.96(i)(1).

1/ Incidents of actionable police misconduct during the same period are by no means limited to those at issue here. E.g., see, Plaintiff's Motion for Temporary Restraining Order, filed September 13, 1989.


2) October 30 and November 10, 1989. Summerization of Complaint paras. 32-33. These episodes, where individual police officers placed themselves above the law (Exhibit 3 herewith, para 5, Exhibit 4, paras. 14-16, Exhibit 6, para 4), and behaved like drunken thugs (Exhibit 5, paras. 17-21), indicate a serious tear in the fabric of democratic society. In initiating these incidents the officers acted under color of 36 CFR 7.96(i)(1) or 7.96(g)(5)(x)(B)(2).

3) October 24 and 25, 1989. Summarization of Complaint, paras 34 and 35. Here plaintiffs' communication with the public was interfered with and disrupted under color of 36 CFR 7.96(g)(5)(x)(B)(2). According to police officials (Exhibit 2 paras. 10 and 19), the office of defendant Robbins had direct supervisory involvement in these particular incidents.

Exempt from permit requirements, 2/, plaintiff Picciotto has nonetheless routinely been granted Park Service permits for her two-sign, two-flag demonstration which has been maintained in the same configuration in Lafayette Park, each and every day, for over three years. SEE, Exhibit 1, hereto, paras. 2, 3.

Neither Picciotto's flags nor Thomas' candle posed a threat to any conceivable government interest. Both represented a recognized symbolic act within the status quo. Thomas v. Review Board 450 U.s. 707; Murdock v. Pennsylvania 319 U.S. 105, 117.

2/ "Demonstrations involving 25 persons or fewer may be held without a permit provided that the other conditions required for the issuance of a permit are met and provided further that the group is not merely an extension of another group already availing itself of the 25-person maximum under this provision or will not unreasonably interfere with other demonstrations or special events." 36 CFR 7.96 (g)(2)(i).


"(The Supreme Court) has consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Thornhill v. Alabama, 310 U.S. 88, 97-98. See also, NAACP v. Button, 371 U.S. 415, 432-433; Aptheker v. Secretary of State, 378 U.S. 500, 515-517; United States v. Raines, 362 U.S. 17, 21-22. Garrison v. Louisiana, 379 U.S. 64, 74-75; Smith v. California, 361 U.S. 147; Baggett v. Bullitt, 377 U.S. 360 at 379.


Plaintiffs are likely to prevail on the merits of this actiononfiveseparate grounds:first,36CFR7.96(g)(5)(x)(B)(2) was improperly issued under the Administrative Procedure Act (5 USC sections 500 et. seq., 600 et. seq., 700 et. seq.); second, it was promulgated under false pretenses; third, 36 CFR (g)(5)(x)(B)(2), and 7.96(i)(1) were part or product of an impermissible scheme under the theory set down in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388; fourth, it is unconstitutional; and finally, both regulations have been unconstitutionally employed. See, infra, p. 13.

A. 36 CFR 7.96 (g)(5)(x)(B)(2) Was Improperly Issued

1) The Regulation Was Unnecesary.

"The question in this case is not whether some support for the regulations may be adduced ... 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, 723 (1975), Quaker Action Group v. Morton, 460 F.2d 854, 860 (1971), see also Women Strike for Peace v. Morton, 472 F.2d 1273, 1289 (1972).

If it is not already apparent (e.g. Clarification of Complaint, filed January 17, 1989, para. 126, Amended Complaint, para. 42, Complaint, paras. 77, 79), testimony and evidence will show that the three-foot sign attendance requirement, which is a component of 36 CFR 7.96 (g)(5)(x)(B)(2) (infra, 5/), was clearly


unnecessary in Lafayette Park, except maybe to encourage plaintiffs to migrate "to the Ellipse" -- which happens to be an alleged objective of the Bivens claim. Infra, p. 9. SEE, Complaint, para. 35, and Exhibit 2, also Ex parte Young, supra.

It is true that our Circuit Court upheld a constitutional challenge to a sign attendance requirement, but that decision arose in a particular narrow context where the government purported that "a grave danger (was) threatened." ERA v. Clark, 746 F.2d at 1550.

"The words 'to diminish the Constitutional rights of any person' are omitted as surplusage as there is nothing in the (Administrative Procedure) Act that can reasonably be construed to diminish those rights and because a statute may not operate in derogation of the Constitution." 5 U.S.C. Sec. 559, Historical and Revision Notes. COMPARE, Complaint, para. 77, see also, Amended complaint, para 42. 3/

However, in the case of 36 CFR (g)(5)(x)(B)(2) there defendants purported no similar threat of "grave danger."

2) No Alternative for Communication

Moreover, in the ERA the court found that regulation amenable with law precisely because of "ample alternative channels of communication." See. Complaint, para. 25, Concepcion Picciotto Declaration in Support of the Amended Complaint, para. 7.

"They can always carry their demonstration across Pennsylvania Avenue to Lafayette Park." ERA, supra, p. l528. EMPHASIS added. COMPARE APPENDIX, Exhibit l3l, p. 7560.

3/ "An act repugnant to the Constitution cannot become law." Marbury v. Madison, 5 (1 Cranch) U.S. 137 (1803). "Congress may not by its own ipse dixit destroy the 'public forum' status of streets and parks which have historically been public forums." United States v. Greenburgh, 453 U.S. 114, 133 (1981). Nor may administrative agencies desecrate the Constitution. "The Secretary ... cannot by his regulation alter or amend a ... law." Morrill v. Jones, 106 U.S. 467.


Those "ample alternative channels of communication" are now in grave danger of preclusion under 36 CFR 7.96 (g)(5()(x)(B)(2).

B. The Regulation Was Promulgated Under False Pretenses

To circumvent the First Amendment "problem" the defendants created "problems" which didn't exist to justify needless regulations. One of the defendants' methods for creating illusory "problems" was lying to various courts. 4/ E.g. CoC, paras 43, 74. Another was by lying in the Federal Register. E.g. CoC, para. 131, compare, 36 CFR (g)(5)(x)(B)(2). Complaint, para. 79, Amended Complaint, para. 21, see also, APPENDIX, Exhibit 113-B.

36 CFR 7.96(g)(5)(x)(B)(2) was published in the Federal Register as a rulemaking proposal on August 20, 1985. 5/ Because of the extraordinary amount of public comment generated by

4/ Perhaps one of the most serious allegations in this complaint is that defendants gave allegedly false, "incredible" (ERA 746 F.2d l547 and l550, ftn 4) testimony and evidence which the District Court found to be "totally beyond belief" (ERA, No. 83-l243, slip op. at 23, 24, D.D.C. Apr. 26, l983) to support that very regulation. E.g. Complaint paras. 44, 78. Appendix Exhibit 69.

5/ The regulation provides, "signs that are not being hand-carried and that are no larger than four (4) feet in length, four (4) feet in width and one-quarter (1/4) inch in thickness (exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two (2) or more sides) may be used in Lafayette Park, provided that no individual may have more than two (2) such signs in the Park at any one time, and provided further that such signs must be attended at all times (the term 'attended' is defined as an individual being within three (3) feet of his or her sign(s)), and provided further that such signs may not be elevated in a manner so as to exceed a height of six (6) feet above the ground at their highest point, may not be arranged or combined in a manner so as to exceed the size limitations set forth in this paragraph, and may not be arranged in such a fashion as to form an enclosure of two (2) or more sides. For example, under this provision, two four-feet by four-feet signs may not be arranged to create a sign four feet long and twelve (sic) feet wide, and two or more signs of any size may not be leaned or otherwise placed together so as to form an enclosure of two or more sides. etc." 36 CFR 7.96 (g)(5)(x)(B)(2).


the proposed rulemaking the DOI compiled an extraordinarily lengthy Administrative Record. SEE, Federal Defendant's Motion to dismiss, filed December 21, 1988, p. 28, Ftn. 12. The regulation was not promulgated until March 5, 1986, and became effective on April 4, 1986. 6/

Although the Federal Register justification of the Lafayette Park sign regulation was 11 pages in length, plaintiffs assert that, once the exaggerations, misrepresentations, and falsehoods (see APPENDIX, Exhibit 11) are removed, very little of that publication would survive. See, CoC, para. 131. 7/

C. Defendants Engaged In An Impermissible Scheme Under Bivens; A Regulation Can't Be Repugnant To the Constitution, Which All Defendants, As Lawyers Or Law Enforcement Officers, Should Have Known.

This case is not a normal review of an executive action or administrative proceeding, because it was filed pursuant to the the provisions of 42 USC Sections 1983, 1985(3) and 1986, and the doctrine articulated in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), see also, Butz v. Economou, 438 U.S. 479 (1978), Davis v. Passman, 442 U.S. 228, see also, Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1981). Complaint, para. 1.

"Expression may not be prohibited on the basis that an audience ... takes serious (aesthetic) offense to the expression...." Texas v. Johnson, 109 S. Ct. 2533 at 2536 (1989), (parentheses substituting).

6/ Historical Note: April 4th was the anniversary of Martin Luther King's assassination.

7/ Plaintiffs have raised a detailed challenge to the accuracy and integrity of the Administrative Record. SEE Plaintiffs' Opposition to Federal Defendants' Motion for Judgment on the Administrative Record, APPENDIX, filed January 17, 1989, Exhibit 113-B.


And the Supreme Court has not forgotten that,

"(G)overnment agencies by their very nature are driven to overregulate public forums to the detriment of First Amendment rights ... Facial viewpoint-neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression.... (I)n this case in particular there was evidence readily available that should have impelled the Court to subject the government's restrictive policy to something more than minimal scrutiny." CCNV v. Clark, 468 U.S. at 315, dissent.

This Complaint paints a regulatory history which should impel the Court to scrutinize the behavior of defendants and their agents (Summarization of Complaint, para. 24) to determine whether the object of numerous "meetings of minds" (id. para. 29) was to disrupt, interfere with or terminate plaintiff's socially beneficial expressive activities, because such a scheme would be repugnant to the Constitution. CoC, paras. 68, 69.

"The photographs contained in the administrative record depict the activities of certain long term demonstrators on the White House sidewalk ... and when the government witnesses testified about the conditions on the sidewalk that prompted these regulations they referred specifically to these same long term demonstrators." ERA v. Clark, USDC 83-l243, J. Bryant, Memorandum filed April 26, l984, p. ll. Appendix Exhibit 69.

"(P)laintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere coincidence." Id. pp. l4-l5, emphasis added.

"In the circumstances it would appear that plaintiffs' claim in this regard in no wise can be characterized as frivolous; however, in light of this court's disposition of this case, it need not resolve this particular issue." ERA, J. Bryant, memo, pp. l4-l5, emphasis added. SEE ALSO, ERA v. Clark, 746 F.2d at 1527 COMPARE, Declaration of William Thomas in Support of the Amended Complaint, at paragraphs 1 - 12, and COMPARE, CoC, paras. 46-60,

Judge Bryant's weren't the only facts which remained in dispute and are now at issue in the instant matter. E.g.,


"(T)here remains an incredible number of incidents stemming from (plaintiffs') arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Thomas v. United States, DCDC, Magistrate Burnett's Memorandum Opinion, Report & Recommendation, filed January 13, 1987, pp. 8 and 9, see, Plaintiffs' APPENDIX, Exhibit 3, pgs. 8 and 9.

"(T)he Magistrate concludes that there exist sufficient troublesome incidents raising genuine issues of material facts in dispute in this case, which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Id, pg. 14.

Plaintiffs have made efforts to meet and reason with defendants to iron out any legitimate problems which might exist. E.g. CoC, para 131. Defendants have consistently refused. E.g. APPENDIX Exhibit 131, p. 7536.

Assuming, solely for the sake of argument, that defendants actually had had some legitimate concern with plaintiffs' continuous presences in the park, the proper approach would have been for defendants to reason with plaintiffs, rather than to trash the Constitution and unleash police force upon them.

"It is not easy to draw the lines established in the final rules." Fed. Reg., March 5, 1986, at 7566.

Plaintiffs contend that drawing the lines wasn't easy for two reasons. Not only were the regulations unnecessary, but there was also the "problem" that the very "individuals" menioned as a justification for the earlier White House sidewalk regulations -- where "a strong argument might have been made that such a ban would be unconstitutional" (ERA, supra, at 1528) -- were the same "individuals" defendants were falsely accusing of "causing the problem of ... signs in Lafayette Park." See, CoC, para 131.

Considering these factors, and recalling James Watt's intention to "prohibit demonstrations and protests" and "require that


they take place on the Ellipse" (Complaint, para. 35, id. Exhibit 2), we are able to appreciate a reason why:

"(o)ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it can be exercised in some other place." Schneider v. State, 308 U.S. 147.

We are also able to understand how, in drawing such bold lines, defendants ran a considerable risk of offending an honorable court's sense of justice, with a constitutionally offensive scheme to chip away at the bedrock of democracy. Nevertheless, defendants drew the lines and got away with it. The facts of Application reveal how defendants' unnecessary line-drawings have undermined the status quo.

Rather, defendants have gone to the opposite extreme. Persecuting plaintiffs to the fullest extent possible, the government has represented to the courts that the permits "are superfluous" (Exhibit 8, p. "72"), and that not even court ordered probation conditions can save plaintiffs from regulatory torment. Plaintiff's Reply to Federal Defendants' Notice to the Court, filed October 13, 1989, Exhibit B.

D. The Regulations Are Unconstitutional Because
They Are Used To Stifle First Amendment Expression.

United States v. O'Brien, 391 U.S. 367, required that the incidental restrictions a regulation imposes on protected expression be no broader than is essential to the furtherance of the governmental interest at stake. Id. at 382. The challenged regulation must not unnecessarily contain provisions that entirely fail to advance the relevant governmental interest. If a regulation prohibits an identifiable class of expressive activity


that does not pose any threat of the evil against which the regulation is directed, the courts will declare the regulation unconstitutional as it applies to that class of expression. SEE, Texas v. Johnson, supra, at 2533 (1989), see also, Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482, 1485-90 (1975).

When acting in the area of expressive activity, regulations:

"must be couched in the narrowest terms that will accomplish the pinpointed objective permitted by ... the essential needs of the public order." Carroll v. Commissioners, 393 U.S. 175, 183 (1968), and see, Schad v. Mt. Ephraim, 425 U.S. 61 (1981).

The government must show that these regulations further "a substantial governmental interest ..." unrelated to suppressing free thought and expression (i.e. First Amendment).

"(T)he danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature ... downright unpleasant for unsympathetic viewers. []

"(I)n this case, the government has an obvious interest of its own: its natural ambivalence toward the existence of ... demonstrators at the very gates of the White House, attracting news coverage and often raising unwelcome complaints about administration policies. We must therefore examine the government's asserted purpose and the efficacy of this regulation in satisfying that purpose with particular care." ERA, supra, at 1551.

Once defendants cannot show that plaintiffs have done something of greater "government interest" than to maintain a demonstration, vigil, or continuous presence in Lafayette Park as an expressive act and "religious service," the Court should swiftly move to grant plaintiffs relief. 8/

8/ In this Complaint there are allegations of religious (Comlaint,para 21 (g)), political (id. compare paras. 21, generally with para. 72) or ideological animus driving defendants' actions.


"Freedom of conscience and freedom to adhere to such religious ... form of worship as the individual may choose cannot be restricted by law ... thus the First Amendment embraces two concepts - freedom to believe and freedom to act." Cantwell v. Conn., 310 U.S. at 303.

E. As The Facts Show the Regulations Have Been Unconstitutionally Applied.

At its inception on June 4, 1982 the "camping" regulation gave an impression of clean intent and defined purpose.

"The regulations prohibiting camping are not intended to stifle First Amendment expression, but rather to protect undesignated areas from activities for which they are unsuited, or the impacts of which they cannot sustain. Short term casual sleep which does not occur in the context of using the area for living accommodation purposes will not be affected by these regulations." Federal Register, June 4, 1982, p. 24301. 10/

Plaintiffs have caused no identifiable damage or "impacts" to the area of Lafayette Park. Thus defendants will be unable to show a "substantial interest" to justify preventing plaintiffs from maintaining a continuous presence in Lafayette Park.

"If the (regulation) were aimed only at (protecting against impacts which the area cannot sustain) and not at the communication of his actions there would be little reason for the (regulation) to be triggered in the absence of ("impacts which the area can not sustain)." Johnson, supra, at 2541 (substituting).

Round-the-clock demonstrations in front of the White House have long been a recognized form of peaceful social criticism shielded from official interference. 9/ SEE, e.g., United States v. Abney, 534 F.2d 984; Quaker Action Group, 516 F.2d 717,

9/ "The term 'demonstrations' includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent, or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers." 36 CFR 7.96 (g)(1)(i).


723 (1975), etc.

"The regulatory scheme did not sufficiently assure exhibitors a prompt judicial resolution of First Amendment claims. The interest in immediate resolution of such claims is surely no less where criminal prosecutions are threatened under statutes allegedly overbroad and seriously inhibiting the exercise of protected freedoms." Dombrowski, supra, at 489.

The claim alleges that 36 CFR 7.96 (i)(1) has already been wrongfully utilized to justify assaulting and incarcerating plaintiffs (see, E.g. Declaration of Concepcion Picciotto in Support of the Amended Complaint, paras. 4, 13-17 20, and 22, also, CoC, paras. 2, 13, 16, 17, 18, 130, Complaint, para. 57), and to interfere with or disrupt their constitutionally protected activities. See, e.g., Summarization of Complaint, filed herewith, paras. 34 and 35, Complaint para. 58.

Notwithstanding the untested representation that the "camping" regulation was "not intended to stifle First Amendemnt expression," we now have the unfathomable situation (United States v. Sunrise, US App. No. 88-3038) in which a defendant had obtained permits from the National Park Service to maintain a "continuous presence" (APPENDIX, Exhibit, 139), the activity in which he was involved did not exceed the conditions of the permit, the defendant was also under probation conditions, which were not violated (Exhibit 7, p. "71"), and the government's only explanation is that the "permit is superfluous in the sense that it permits him to do what he has been doing for ... years." Id. p. "72," see also, APPENDIX, Exhibit 137), a police officer still arrested Sunrise for "maintaining the vigil" (Exhibit 7, p. "27"), and he was convicted of "camping."


"(T)he allegations in this complaint depict a situation in which defense of the (government's) criminal prosecution will not assure adequate vindication of constitutional rights." Dombrowski, supra, at 485.

F. StareDecisis Is Not Fact
Judicial Decisions Founded On False Testimony Should Not Be Confused With Res Judicata.

At first blush it would appear that defendants are likely candidates to counter a Bivens claim by hiding under the doctrine of res judicata.

"In accordance with this view the court withdrew its initial determination that the statutes were not unconstitutional on their face." Dombrowski, supra, at 483. Compare United States v. Thomas, 864 F.2d 188, and Thomas v. United States, 696 F. Supp. 701.

As it has been frequently pointed out, res judicata must not be confused with stare decisis, since the two concepts rest on different principles. Heisler v. Thomas, 24 ALR 1215, aff'd 260 U.S. 245.

Res judicata applies to decisions of both law and fact. Stare decisis is applicable only on questions of law.

"The issue for decision on this appeal is not factual, it is legal...." ERA supra, at 1542.

Although previous litigations have touched on certain areas contiguous to the claims made here, it is clear that those rulings have only been legal, not factual, hence stare decisis rather than res judicata, and therefore, inadequate to shield defendants from a claim that they intentionally engineered a regulatory scheme "to suppress the exercise of plaintiffs' religion, and to interrupt the expression of plaintiffs' moral opposition to the defendants' personal power play of Peace Through


Strength by harassment, threats, intimidation, defamation, or imprisonment." Complaint, para. 20. See, ERA, supra l542; Clark v CCNV, 468 U.S. 3l5.


Unrelenting harassment and intimidation has a chilling effect on even the hardiest of people. As relates to this matter unjustified police pressure has caused numerous people to abandon their efforts to communicate in Lafayette Park, and deprived plaintiffs of association. E.g., Exhibit 4, para. 19, see also, APPENDIX Exhibit 109, paras. 38, 39.

"Expression may not be prohibited on the basis that an audience ... takes serious (aesthetic) offense to the expression..., since the government cannot assume that every expression of a provocative idea will incite (impacts the area cannot sustain), but must look to the actual circumstances surrounding the expression." Johnson, supra, at 2536.

It needs no elaboration to assert that the display of signs in "traditional public forums" is an exercise of freedom of speech and freedom to petition protected by the First Amendment. See, e.g., Saffron v. Wilson, 481 F. Supp. 228, see also, Glasson v. City of Louisville, 5l8 F2d 904, 908 (USApp 6th Dist. l977), (cert. denied).

Courts have recognized that displaying flags or lighting candles are not "boisterous, untidy, (or) unsightly" activity. Texas v. Johnson, supra, compare, ERA, supra, at 1551./P>

"Those who demonstrate in support of peace and justice often light candles in symbolic protest against war and oppression and in memory of those victims of violence who have perished." Thomas v. United States, 575 A.2d 1296 at 1298. SEE ALSO, Declaration of William Thomas, filed herewith, paras. 3-5, 8.



Plaintiffs suggest that, in order to preserve liberty, the laws of a free nation must protect the rights of an individual to remain in a public park, to practice religious beliefs, to enjoy assembly, to express ideas, all free of maliciously-directed police power.

Brown v. Louisiana
, 383 U.S. 131.

"(T)he danger is ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive...." ERA, supra, at 1551.

The enforcement of 36 CFR 7.96(G)(5)(X)(b)(2) was and is unnecessary because plaintiffs' signs always have been and are attended. Moreover, if abandoned signs actually do become a problem, defendants have other regulations which would allow for the removal of such signs.

Plaintiffs have already been assaulted, arrested, and incarcerated without any showing of probable cause (e.g. Complaint, para. 57), and have had their peaceful activities disturbed under the pretext of this regulation. See, Summarization of Complaint paras. 34, 35.

The fact that plaintiffs have always attended their signs has resulted in the arrest and criminal prosecution of individuals under color of the "camping" regulation when they were "maintaining the vigil." Supra, page 14, also, Exhibit 7.

"Before a person is threatened with jail for such a violation, the government must show that the (application) of the rule itself is not in violation of the law." United States v. Picciotto, ___ F.2d ___, in this Record as Exhibit 4 to Plaintiffs' Notice to the Court, filed Octover 13, 1989, see also, Dombrowski, supra.

As shown above, defendants' regulation places onerous new restrictions on plaintiffs' First Amendment demonstration


activity, subjecting them, at the whim of the officer on the beat, to arrest or the disruption of peaceable conduct which has long been permitted in Lafayette Park. Even permits will not preclude arrests. It goes without saying that the fear of arrest will chill if not prevent people from exercising their First Amendment rights. Under the established law, this constitutes irreparable injury justifying the issuance of injunctive relief. See, Elrod v. Burns, 427 U.S. 347, 373-374 (1976), New York Times v. United States, 403 U.S. 713 (1971); In re Halkin, 598 F.2d 176, 199 (D.C. Cir. 1979).

By creating an atmosphere in which individuals would be deprived of the protection of the most fundamental constitutional laws defendants have wielded Title 36 CFR as a sledgehammer to fracture the foundation of civilization, thus jeopardizing the liberty of each and every person within the legal jurisdiction of the United States. SEE, Amended Complaint para. 45, see also, Complaint, para. 26.


While defendants may be said to have demonstrated a legitimate concern in "protect{ing} undesignated areas from activities for which they are unsuited, or the impacts of which they cannot sustain" (supra, p. 13), defendants must demonstrate some substantial interest in precluding plaintiffs' "vigils," and will not suffer injury if enjoined from precluding or punishing "vigils" under color of "camping."

"The Park Service, like any other government agency must conform to the APA's notice and comment requirements when engaging in any informal agency rulemaking procedures..." Picciotto, id at p. 4.


Assuming defendants have some valid reason to terminate plaintiffs' "vigils" they must follow the lawfully required procedures, rather than merely implementing policy to cause plaintiffs' arrest and incarceration for holding a "vigil" simply because defendants' agents swear that plaintiffs were "camping."

"The Park Service cannot construct its own veto of Congressional directions (such as the First Amendment)." Picciotto, id (parentheses added).

To enjoin defendants and their agents from continuing these activities while this case is more fully litigated will simply preserve the status quo that existed prior to the arbitrary actions of the defendants' agents to disrupt it. SEE, Declaration of Concepcion Picciotto, attachment 1, permit.


The granting of relief would also be in the public interest. It is in the public interest, as expressed by Congress in enacting the Administrative Procedure Act, to insure that regulations are necessary. It is in the public interest to require government agencies to obey the law. It is also in the public interest that First Amendment values be scrupulously protected; this interest is entitled to heavy weight in the injunctive
relief balance. See, e.g. Knights of the KKK v. East Baton Rouge, 587 F.2d 1122, 1127 (5th Cir. 1978.)

If overbroad regulatory schemes similar to the one at issue here are judicially condoned to suppress First Amendment expression in Lafayette Park then any demonstration site the government might care to mute or silence is endangered. Therefore the decision this Court makes will be of profound importance not only in Lafayette Park, but wherever conscientious citizens


choose to exercise their right and, as Thomas Jefferson advised, their responsibility to speak out.


As demonstrated above, plaintiffs have satisfied the requirements for injunctive relief. For this reason, plaintiffs' application for a temporary restraining order and plaintiffs' motion for a preliminary injunction should be granted.

Respectfully submitted,

William Thomas
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
November __, 1989