MARY HUDDLE, et al.,

           v.                   Civil Action 88-3130-JHG

RONALD WILSON REAGAN, et al.,                 


Following their well-trod path to the Clerk's Office, plaintiff's have yet again moved for a preliminary injunction in this case. This time plaintiffs allege that Park Police officers on two occasions earlier this month, seized two flags attached to signs in Lafayette Park owned by Concepcion Picciotto. According to plaintiffs, Picciotto, after the second flag seizure, was given a citation for violating 36 C.F.R. §7.96(B)(2). In their latest motion, plaintiffs seek an Order preliminarily enjoining any forthcoming criminal prosecution of Picciotto until after this Court resolves the constitutional challenge to the Lafayette Park regulations mounted by plaintiffs in this case. Plaintiffs' motion should be denied.

Plaintiffs' motion is, of course, to be judged against the familiar four-part preliminary injunction standard prevalent in this Circuit. Plaintiffs must demonstrate: (l) that they are likely to succeed on the merits of their claims against the federal defendants; (2) that irreparable harm will befall them 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 be denied.

Turning first to plaintiff's irreparable harm argument, it is clear that Picciotto will suffer no irreparable harm in the absence of an injunction. Simply put, she has chosen the wrong forum to challenge her potential criminal prosecution. Rather than seek an injunction from this Court in this case, Picciotto must wait and see whether she is criminally prosecuted and at that time assert any infirmities with her criminal prosecution in that criminal case. 1/

1/ We note, moreover, that at this writing the undersigned do not know whether a criminal prosecution for the violations at issue will be forthcoming.

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The traditional rule at common law was that courts of equity " had 'no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors' and therefore could not enjoin criminal proceedings." Deaver v. Seymour, 822 F.2d 66, 68 (D.C. Cir. 1987), cert. denied, 108 S.Ct. 99 (1987), quoting, In re Sawyer, 124 U.S. 200, 210 (1888). Although the traditional rule has at times yielded cases where civil injunctions were properly issued to restrain state criminal prosecutions' the Court of Appeals for this Circuit recently noted that there are no reported cases where "a federal court enjoined a federal prosecutor's investigation or presentment of an indictment." Deaver, 822 F.2d at 69. The rationale for the absence of such cases is simple: a person prosecuted in federal court has available to him or her Rule 12 (b) (1) of the Federal Rules of Criminal Procedure, whereby he or she can challenge, after indictment but before trial, any and all "defects in the institution of the prosecution." Id. at 69-70. See also Juluke v. Hodel, 811 F.2d 1553, 1556-57 (D.C. Cir. 1987). Thus, Picciotto's remedy in challenging any prosecution is by moving to dismiss that particular case--not by seeking a separate civil injunction as she has here.

The facts of Deaver are instructive. In that case, the plaintiff, a former White House Deputy Chief of Staff, sought to challenge, by way of a civil action, the constitutionality of the Independent Counsel statute prior to any criminal indictment. The Court of Appeals affirmed Judge Jackson's denial of a preliminary injunction, holding that rather than challenge the Independent Counsel's authority pre-indictment in a civil action,

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Deaver must await the criminal indictment and at that time raise any challenges to the criminal prosecution by way of the Federal Rules of Criminal Procedure. Id. at 69-70. The Court held that requiring Deaver to follow this procedure did not constitute irreparable harm, Id. at 68, and concluded by stating that (p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure." Id. at 71.

The same conclusion is compelled in this case. Picciotto---and the other plaintiffs--cannot use this civil action as a vehicle to avoid criminal prosecution for violating various National Park Service regulations. Accordingly, they will suffer no irreparable harm by a denial of their motion.

Similarly, plaintiffs are not likely to succeed on the merits. As the federal defendants have explained at length in their previous submissions, the regulations at issue in this case--including particularly the regulatory provisions at issue in plaintiffs' latest motion--constitute valid time, place and manner restrictions that have been upheld against constitutional challenge in several contexts. Plaintiffs have advanced nothing in their latest motion to support a conclusion to the contrary. In fact, it is quite clear that Picciotto was, in fact, in violation of the regulations at the time she was cited. See Declaration of Randolph J. Myers and other exhibits attached hereto. As we have noted above, the fact that Picciotto has challenged those regulations in a separate civil case cannot serve as a basis for enjoining future arrests and prosecutions for violating those provisions.

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Plaintiffs also lose on the balance of hardships and the public interest prongs of the preliminary injunction test. The public will be harmed far greater than plaintiffs if an injunction issues because, as we have previously argued, plaintiffs' "burden" in complying-with the minimal restrictions imposed by the regulations is-far outweighed by the goal of the regulations to promote and protect the aesthetic value, public use, safety and resources of Lafayette Park. A stay of any criminal prosecution of Picciotto is thus, completely unwarranted.


For each of the foregoing reasons, the federal defendants urge the Court to deny plaintiffs' latest Motion for Preliminary Injunction. A proposed Order is attached for the Court's convenience.

Respectfully submitted,

/s/ Jay B. Stephens
United States Attorney

/s/ John D. Bates
Assistant United States Attorney

/s/ Michael L. Martinez
Assistant United States Attorney

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I hereby certify that this 28 th day of June, 1990, I sent one copy of the foregoing Federal Defendants, Opposition to Plaintiffs' Motion for a Preliminary Injunction to Stay Criminal Prosecution via first class U.S. mail to:

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

Victor Long
Assistant Corporation Counsel
Third Floor District Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

/s/ Michael L. Martinez
Assistant United States Attorney
Room 4810, Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-7161