UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiff,

          v.                        Civil Action 88-3130 JHG

RONALD WILSON REAGAN, et al.,
             Defendant.

FEDERAL DEFENDANTS' OPPOSITION TO PLAINTIFFS'
MOTION FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

INTRODUCTION

Notwithstanding the fact that plaintiffs, without success, have sought twice previously a Temporary Restraining Order and/or Preliminary Injunction in this matter, they have moved anew for immediate injunctive relief. Although the specific facts that form the bases of their recent motion have occurred in the more recent past, the arguments plaintiffs advance in support of their latest request for injunctive relief are the same tattered, tired and meritless arguments previously advanced and rejected in prior litigation. Therefore, as the federal defendants explain below, the injunctive relief plaintiffs seek is not warranted and this Court should deny plaintiffs' latest motion. 1/

1/ Five substantive motions are fully briefed and awaiting decision from the Court: (1) the federal defendants' Motion to Dismiss filed December 21, 1988 (all parties agreed that motion would constitute a response to plaintiffs' original request for preliminary injunction and that plaintiffs" request should be deemed one for a permanent injunction. See December 6, 1988

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ARGUMENT

The standard for the Court to apply in resolving plaintiffs' motion is well-settled. Plaintiffs must demonstrate: (1) that they are likely to succeed on the merits of their claims against the federal defendants; (2) that irreparable harm will befall plaintiffs in the absence of relief; (3) that such injury outweighs any harm to the federal defendants or others which might result from the grant of the requested immediate injunctive relief; and (4) that the public interest favors a grant of the requested relief. Wisconsin Gas, Co. v. FERC, 758 F.2d 669, 674 D.C. Cir. 1985); Washington Metropolitan Area Transit Comm. v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). A preliminary injunction is a drastic and extraordinary form of relief that should not be granted absent a clear and convincing showing by the moving party, Yakus v. United States, 321 U.S. 414 1944); Kahane v. Secretary of State, 700 F.Supp. 1162, 1165 (D.D.C. 1988), and "[t]he injury must be both certain and great; it must be actual and not theoretical." Id.; Wisconsin Gas, 758 F.2d at 674. Plaintiffs cannot meet this exacting standard and thus their motion should not succeed.

(footnote continued from previous page)

Order); (2) the District defendants' similar motion; (3) plaintiffs' February 8, 1989 Motion for Sanctions against Assistant United States Attorney ("AUSA") Michael L. Martinez; (4) plaintiffs' October 18, 1989 Motion to Compel Discovery; and (5) the federal defendants' October 25, 1989 Motion for Protective Order

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I. Plaintiffs Are Not Likely To Succeed On
The Merits Of Their Claims.

Plaintiffs' prolix motion essentially boils down to a laundry list of grievances about four separate items, all of which relate in some way to plaintiffs' constant presence in Lafayette Park. First, plaintiffs complain about an October 24, 1989 incident involving plaintiff Thomas holding a lit "candle" in Lafayette Park. Second, plaintiffs complain about an October 25, 1989 incident involving flags on plaintiff Picciotto's signs. Third, plaintiffs complain about October 30 and November 10 incidents in which plaintiffs claim Park Police Officers acted "like drunken thugs". Fourth, plaintiffs complain about several incidents during September 2-7 in which they were "rousted" several times in the middle of the night. See plaintiffs' Memo. at 4-5; Thomas Dec., is 33-38. Against the backdrop of these factual settings, plaintiffs advance anew legal arguments either already fully briefed in defendants' pending Motion to Dismiss and/or already resolved by earlier litigation.

Plaintiffs' factual arguments are both misleading and meritless. We turn first to plaintiffs' "candle" complaint. William Thomas asserts in his declaration that on October 24, 1989 at 7:00 p.m. he was holding a religious vigil in Lafayette Park in honor of Martin Luther King. According to Thomas, as part of the vigil he was holding what he describes as a lit "candle" when several Park Police officers arrived and seized his "candle" as "illegal". In fact, Mr. Thomas' "candle" was a 4-5

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foot long torch of the kind popular at Hawaiian luaus. Upon observing the lit torch, the Park Police decided it was violative of 36 C.F.R. §2.13 (1988). 2/ They advised Thomas of the violations, seized the torch, extinguished it and telephoned Assistant Solicitor of Interior Randolph Myers at home for a legal opinion regarding the torch. Myers advised that a photograph be taken, that an incident report be prepared and that the unlit torch be returned to Thomas. See Dec. of Randolph J. Meyers, pgs. 1-3 (attached hereto as Exhibit 1). Upon reviewing the incident report and photograph, Myers concluded that Thomas' torch was violative of federal regulations. Id., Is 4-5. 3/ The conclusion that Thomas' torch was violative of Federal regulations was plainly correct. 36 C.F.R. §2.13 is designed, as are other park regulations, to protect park resources and to

2/ 36 C.F.R. §2.13 (1988) states in pertinent part: (a) the following are prohibited:

(1) Lighting or maintaining a fire, except in designated areas or receptacles and under conditions that may be established by the Superintendent.
* * *
(3) Lighting, tending or using a fire, stove, or lantern in a manner that threatens, causes damage to, or results in the burning of property, real property or park resources, or creates a public safety hazard.

3/ A copy of the photograph and the incident reports are attached to Myers' Declaration. The original of the photograph can be made available for the Court's review.

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ensure safety. Thomas' torch was unsafe. Indeed the Park Police incident report notes that while the torch was lit in Lafayette Park the flame was 8-10 inches high and the flame was producing lit ashes or sparks that were falling lit to the ground. This presented a safety hazard to passers-by and the demonstrators themselves as well as [to] their belongings.

Attachment to Exhibit 1. Moreover, the flame was plainly visible from a good distance and the torch produced "a strong burnt odor." Id. Clearly the Park Police acted in an appropriate and legally correct manner.

Plaintiffs next complain about an incident involving Picciotto's signs that occurred on October 25, 1989. Specifically, plaintiffs complain about the Park Police ordering Piccolo to remove a flag attached to each of her two four feet by four feet signs displayed in Lafayette Park. Thomas Dec., is 13-31; Piccolo Dec. Again the Park Police's directions were perfectly proper and justified by federal regulations. 36 C.F.R. 57.96(g)(5)(x)(B)(2), among other things, imposes limits on the number, size and location of signs in Lafayette Park. In particular, demonstrators in Lafayette Park cannot have more than two signs larger than four feet by four feet. Picciotto had with her, among other things, two four by four foot signs. Attached to those signs were flags thereby making the signs larger than that permitted by the regulations. Officer Mizell thus instructed Picciotto to remove the flags and William Thomas did

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so. Myers Dec., is 6-8; Thomas Dec., 1 31. This conduct by the Park Police was, again, appropriate and legally correct as it fell squarely within the bounds of the applicable regulation.

The third and fourth items plaintiffs cite are similarly devoid of merit. Plaintiffs, through the declarations of Joseph Vigorito, Michael Cronin, Stacey Davis and Jeffrey Brown, complain about alleged Park Police harassment on October 30 and November 10, 1989. The "harassment", according to the declarants took the form of officers looking under the tarps of various demonstrators and allegedly using foul and threatening language. As the attached declarations of Park Police officers Gill Marsh and Scott Dahl illustrate, however, plaintiffs' declarations are short of the truth.

As the Park Police declarations explain, on the occasion of both evenings in question the foot patrol officers in Lafayette Park observed tarps spread about among an array of personal belongings. Consistent with their duty and responsibility to ensure that demonstrators and others not camp in Lafayette Park (see 36 C.F.R. 97.96(i)) the officers sought to observe what was under each tarp and whether anyone was sleeping under them or using the park for living accommodation purposes. Plaintiffs and their various declarants took exception to the officers' duties and responsibilities, despite the fact that the Courts repeatedly have upheld the constitutionality of the regulation proscribing camping. See e.g. Clark v. Community for Creative Non-Violence ("CCNV"), 468 U.S. 288 (1984); United States v. Thomas, 864 F.2d

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188 (D.C. Cir. 1988). The Park Police declarations explain that the officers' intent was solely to enforce and ensure compliance with federal regulations and the officers specifically deny using any profanity and deny making any threats. See attached Exhibits 2 and 3. These declarations fully illustrate that the Park Police did nothing improper on the evenings in question.

As to the various evenings during September 2-7 about which plaintiffs complain they were "rousted" at various times during the night, the federal defendants do not deny that such incidents occurred- Thomas Dec. Is 33-38; Defendants' Exhibits 4-7. But that is of no consequence because the Park Police were only doing their job. It is the Park Police's duty and responsibility to ensure that people are not camping in Lafayette Park -- a term defined by 36 C.F.R. §7.96(i)(1) as including using the park for "sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping)". In view of this definition and their responsibility, the Park Police were fully warranted in "rousting" sleeping persons in sleeping bags or under tarps in Lafayette Park at 12:15 a.m., 3:00 a.m., 5:30 a.m. and the other odd hours identified by Mr. Thomas. obviously the plaintiffs and others being "rousted" under these circumstances were at least presenting an appearance of violating the camping regulation, if not in fact violating it. In fact, it is interesting that plaintiffs, specifically Thomas, describe the Park Police actions as "rousting" plaintiffs. Webster's New World Dictionary (2d Coll. Ed. 1980) defines roust as "to rouse

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or stir." Rouse in turn is defined as "to cause to come out of a state of sleep, repose, unconsciousness, etc.; wake." Plaintiffs -- and Thomas specifically -- by use of the term "rouse" effectively admit that they were violating the camping regulation on each identified occasion during September 2-7, 1989. Thus, plaintiff's objections to the Park Police action in rousting sleepers in the Park should be summarily rejected.

With this factual backdrop in mind, plaintiffs advance several legal arguments in support of a preliminary injunction. Specifically they argue: (1) 36 C.F.R. §7.96(g)(5(x)(B)(2) is unconstitutional, unnecessary, and was promulgated under false pretenses; (2) the regulation is unconstitutional as applied; (3) plaintiffs have no alternative for communication; (4) the defendants engaged in an unconstitutional conspiracy; and (5) stare decisis and res judicata do not apply. These arguments have no merit and already have been fully briefed in this case and rejected in other decisions.

In Thomas v. United States, 696 F. Supp. 702, 705 (D.D.C. 1988), aff'd mem. No. 88-5367 (D.C. Cir. July 17, 1989), in the earlier version of this case, Judge Oberdorfer held that "[i]t is beyond question that [these] regulations constitute valid time, place, and manner restrictions on the exercise of First Amendment rights in Lafayette Park." Both the Supreme Court and our Court of Appeals have reached the same conclusion regarding the camping regulation, Clark v. CCNV, supra; U.S v Thomas, supra, and both the Court of Appeals and Judge Oberdorfer have rejected

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plaintiffs' argument that the regulations are unconstitutional as applied. U.S. v. Thomas, 864 F.2d at 194-99; Thomas v. U.S., 696 F. Supp. at 706-11. The federal defendants have, moreover, more fully addressed the constitutionality of the regulations in their memorandum filed December 19, 1988 -- to which the Court is respectfully referred. (see pp. 26-30).

The federal defendants have also fully briefed plaintiffs' conspiracy claims and stare decisis/preclusion argument in their December 1988 memorandum (pp. 11-17), and Judge Oberdorfer specifically rejected these same plaintiffs' conspiracy claims against many of these same defendants. Thomas v. U.S., 696 F. Supp at 704-05; Thomas v. News World Communications, 681 F. Supp. 55, 66-72 (D.D.C. 1988). Moreover, plaintiffs' argument that there are no alternative means for communication has at least been implicitly rejected by Judge Oberdorfer by way of his finding that the Lafayette Park regulation is constitutional. Even without an explicit statement to that effect, however, it is plain that plaintiffs' argument about unavailable alternate channels of communication is completely without merit. See e.g. CCNV v. Kerrigan, 865 F.2d 387-88 (D.C. Cir. l989)(rejecting similar challenge by CCNV in the context of a Capitol Grounds regulation).

In short, in view of these meritless and previously rejected arguments, plaintiffs have little to no likelihood of success on the merits.

II. The Remaining Prongs Of The Preliminary
Injunction Test Favor The Federal Defendants.

The three remaining prongs of the preliminary injunction test can be quickly addressed. First, plaintiffs will suffer no irreparable harm by the denial of the requested injunction. The regulations about which plaintiffs complain impose no appreciable constraints on those wishing to demonstrate in the Park and as other Court decisions have established, the regulations are constitutional. The Lafayette Park regulations have been in effect for three and one-half years and the camping regulation for several years longer. The regulations have worked well in achieving their goals of maintaining Park resources and achieving a high level of aesthetic quality in the White House area. Plaintiffs have continuously demonstrated in Lafayette Park for several years in spite of the regulations and thus manifestly have failed to demonstrate any irreparable harm by the continued operation and validity of the regulation. 4/

4/ To the extent plaintiffs urge the Court to modify or tinker with the regulations, that request must be rejected. The Park Service, not the Courts, is in the best position to determine how best to manage the resources of the Park. Clark v. CCNV, 468 U.S. at 299. The Court has no power fine-tune the regulations so long as they constitutionality. CCNV v. Kerrigan, 865 F.2d at 390; Juluke v. Hodel, 811 F.2d 1553, 1560 (D.C. Cir. 1987); White House Vigil v. Clark, 746 F.2d 1518, 1529, 1541 (D.C. Cir. 1984).

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Similarly a balance of hardships and the public interest favor a denial of the requested injunctive relief. The harm to the Park and the public-at-large's use of the Park will be much greater if plaintiffs' injunction is granted than will be any harm to plaintiffs if the motion is denied. The minimal restrictions imposed by the regulations simply do not outweigh the greater interests served by the regulations of promoting and protecting the aesthetic value, public use, safety and resources of Lafayette Park. As for the public interest, it is clear that it favors denial of the injunction. The administrative record undergirding the Lafayette Park regulation is replete with comments from the public pleading for the government to enact same regulation to "clean-up" Lafayette Park while balancing that effort with the constitutional right of free expression. The regulations at issue achieve that goal and thus the public interest compels a denial of plaintiffs' requested injunction.

CONCLUSION

Apparently believing that if they demand the same thing enough times someone eventually will give in, plaintiffs have moved for at least the fourth time (two in Thomas v. U.S. and two in this case) to enjoin the Lafayette Park and camping regulations and to declare them unconstitutional. Plaintiffs' arguments are no more compelling the fourth time than they were the first. The Court has no warrant to grant the requested relief and it should, therefore, quickly and decisively deny plaintiffs' motion.

Respectfully submitted,

//s// Jay B. Stephens
JAY B. STEPHENS, DC Bar
#177840
United States Attorney

//s//John D. Bates
JOHN D. BATES DC Bar #934927
Assistant United States Attorney

//s/Michael L. Martinez
MICHAEL L. MARTINEZ, DC Bar #347310
Assistant United States Attorney

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiff,

          v.                        Civil Action 88-3130 JHG

RONALD WILSON REAGAN, et al.,
             Defendant.

ORDER

UPON CONSIDERATION of plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction, the federal defendants' opposition thereto and the entire record in this matter, it is by the Court this __ day of _________1989, hereby

ORDERED, that the motion is DENIED.

UNITED STATES DISTRICT JUDGE
MICHAEL L. MARTINEZ
Assistant U.S. Attorney
Judiciary Center Building
555 4th Street, NW.
Room 4810
Washington, D.C. 20001

ARTHUR BURGER
Assistant Corporation Counsel
Third Floor, District Building
1350 Pennsylvania Avenue, NW.
Washington, D.C. 20004

WILLIAM THOMAS
1440 N Street, NW.
#410
Washington, D.C. 20005

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this 4th day of December, 1989, I made one copy of the foregoing memorandum available for personal pick-up by

William Thomas,
1440 N Street, NW., #410,
Washington, D.C. 20005

and I mailed one copy, via first class U.S. mail to

Arthur Burger,
Assistant Corporation Counsel,
Third Floor District Building,
1350 Pennsylvania Avenue, NW.,
Washington, D.C. 20004

//s// Michael L. Martinez

MICHAEL L. MARTINEZ , DC Bar #347310
Assistant United States Attorney
Judiciary Center Building
555 4th Street, NW Room 4126
Washington, D.C. 20001
(202) 272-9195