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


Defendants' Opposition to plaintiffs' motion for a preliminary injunction first notes that "[t}he injury must be both certain and great; it must be actual and not theoretical." Opposition, p. 2. 1/ Next defendants assert that "Picciotto will suffer no irreparable harm." Id. Finally, defendants rely on Deaver v. Seymour, 822 F.2d 66 (D.C.Cir. 1987), and Juluke v. Hodel 811 F.2d 1553 (D.C.Cir. 1987) to support the contention 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." Opposition, ps. 2, 3.

Rather than standing firmly for the proposition that "courts of equity ... could not enjoin criminal proceedings," Deaver carefully identifies two distinct lines of cases: Younger v. Harris 401 U.S. 27 (1971), et seq., and Wooley v. Maynard, 430 U.S. 705 (1977), et seq. Deaver at 69.

1/ Defendants ignore the fact that Picciotto has had her flags seized, and has, therefore, already suffered interference with her First Amendment exercise. At the same time defendants aver "it is quite clear that Picciotto was, in fact, in violation of the regulations" (Opposition, p. 4), they also dwell in the hypothetical where they "do not know whether a criminal prosecution for the violations at issue will be forthcoming." Opposition, p. 2, n. 1.


There are significant facts distinguishing this case from Deaver. But, defendants fail to note the obvious and imply that this Court should proceed here under the Younger v. Harris doctrine. In fact, Wooley v. Maynard more closely approximates the circumstances presented here, "where the threatened prosecution chilled exercise of First Amendment rights." Deaver, at 69, see also, Ex parte Young, 209 U.S. 123 at 156; Doran v. Salem Inn, 422 U.S. 922 (1975); Dombrowski v. Pfister, 380 U.S. 479 (1965)

When a genuine threat of prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights. See, Steffel v. Thompson, 415 U.S. 452 (1974); Doran v. Salem Inn. supra 930-931. Since defendants insist "it was quite clear that Picciotto was ... in violation of the regulations" (Opposition at 4), it is reasonable to assume that defendants will prosecute her.

Picciotto now finds herself placed "between the Scylla of intentionally fluanting (federal regulations) and the Charybdis of forgoing what (she) believes to be constitutionally protected activity in order to avoid becoming enmeshed in another criminal proceeding." Wooley v. Maynard, 430 U.S. 705, 710 (1976), citing Steffel at 462.

Notwithstanding their insistance that Picciotto violated the regulations, and their purported indecision as to whether they will prosecute her, defendants turn to Juluke v. Hodel, 811 F.2d 1553 D.C. Cir. 1987), and claim that Picciotto is not really caught between a rock and a hard place because she can avail herself of F. R. Cr. P. 12 (b)(1).

"The only conceivable reason not to consider the


claim for injunctive relief in the civil case was that it would have been inefficient to do so, becuuse the same issues -- the validity and applicability of the regulations -- would be decided in the criminal action .... We find this reason pursuasive as to whether one court may enjoin on ongoing prosecution in another court. However, this is not the relief that CCNV members sought." Juluke at 1557.

"(W)e limit our inquiry here to whether the regulation as written is unconstiuttional." Id. 1560,

Herein lies the chief distinction between Juluke, Deaver, and the instant case. Plaintiffs here challenge the regulation not as it is written, but rather as an act -- committed contrary to the provision of the Administrative Procedures Act -- constitutionally invalid as the product of a conspiracy intended to disrupt plaintiffs' communicative activities or cause their imprisonment.

"36 CFR 9.76(g)(5)(x)(A)(1)(2)(3)(4)(B)(1) and (2), formerlycodified at 36 CFR 50.19(e)(11)(12), is both unconstitutional, having been promulgated under false pretences and for unconstitutional reasons, and has been unconstitutionally applied. See, Amended Complaint, filed November 23, 1988, para. 42, see also, e.g., Summarization of Complaint, filed November 21, 1989, e.g. paras. 31, 54, 63, 67; Plaintiffs' Memorandum in Support of their Application for a Temporary Restraining Order and Motion for Preliminary Injunction, filed November 21, 1989, pages 6-9; Plaintiffs' (Redacted) Response to Federal Defendants' Supplemental Motion to Dismiss, filed January 17, 1989, page 15; Complaint, filed September 30, 1988, paras 20, 56, 79." Plaintiff Ellen Thomas' Motion to Supplement, filed December 10, 1989, pgs. 1 and 2.

Here it would be inefficient to consider in a criminal proceeding against Picciotto whether the regulation at issue was an act in furtherance of a conspiracy. Not long ago our own Court of Appeals reminded us that "(c)ertainly, a criminal prosecution founded on an agency rule should be held to the strict letter of the APA" United States v. Picciotto, 875 F.2d 345 at ___ (DDC 1989). "Before a person is threatened with jail


for such a violation, the government must ensure that the rule itself is not in violation of the law." Id. at "Conclusion."

Defendants would have the Court begin from the presumption that the regulation at issue "constitute(s) valid time, place and manner restricitons." Opposition at 4. However this presumption merely begs the question, and defendants' purported "goal of ... promot(ing) and protect(ing) aesthetic value, public use, safety and resources" (Opposition at 5) likewise assumes far more than established fact would allow. Before deferring to the government's "aesthetic concerns" a court must be convinced that the government's concerns are serious. Metromedia v. San Diego, 453 U.S. 490 at 581 (1981). 2/

"We must avoid unquestioned acceptance of the (government's) bare declarations of an asethetic objective lest we fail in our duty to prevent unlawful trespasses upon First Amendment protecitons." City Council v. Taxpayers for Vincent, 466 U.S. 789 at 824 (1984).

Another significant distinction is that in Juluke there was no finding of selective enforcement. Id. 1561-1562. Here there is an uncontested allegation of selective enforcement (Declaration of Concepcion Picciotto in Support of the Motion to

2/ Plaintiffs do not "allege that Park Police officerS on two occasions ... seized two flags." Opposition, p. 1. Rather it is alleged that on two occasions Park Police officers threw the flags to the ground (Declaration of Concepicion Picciotto, paras. 5 and 10), and, on a separate occasion, the flags were seized. Id. para. 19. Moreover defendants emphasize that the "flags" were "attached" to Picciotto's "signs." Declaraction of Randolph J. Myers, paras. 4, 4 (sic), and 5. In fact, the "flags" were not attached to the "signs." Picciotto Declaration, para. 15. Finally, the citation was for "sign violation (above 6 feet in height)." Defendants' Exhibit 4. Picciotto enquired what she could do to avoid a violation, but received no response. Picciotto Declaration, paras. 19, 20. If defendants' only objection was the height of the flags, the obvious solution was for Picciotto to reduce the flags' height. Yet instead of advising her of that simple curative action defendants seized the flags.


Stay Criminal Prosecution, paras. 3, 5, and 8) which plaintiffs will prove beyond any reasonable doubt.

In Maynard supra the court held that a "litigant is entitled to resort to a federal forum in seeking redress under 42 USC 1983 for an alleged deprivation of federal rights." Id 710. Juluke explains federal court reluctance to enjoin state court proceedings because "National Government will fare best if the States and their insitutitions are left free to perform their separate functions in their separate ways." Id. 1556, citing Younger at 46. Juluke also notes that "Younger never has been applied by the Supreme Court ... in a situation involving civil and criminal proceedings in separate federal court actions." Juluke at 1556. Therefore, because 42 USC 1985(3) -- under which this Court has jurisdiction in this case -- clearly applies to federal officals (e.g. Hobson v. Wilson, 737 F.2d 1), there is every reason and no barrier for this Court to stay the criminal prosecution in this case.


Upon the foregoing, plaintiffs believe, this Court should disregard defendants' Opposition and grant plaintiffs' motion for stay of any criminal prosecution of plaintiff Picciotto.

Respectfully submitted,

Concepcion Picciotto,
Plaintiff, Pro Se
Post Office Box 4931
Washington, D.C. 20008

William Thomas
1440 N Street, N.W., Apt. 410
Washington, D.C. 20005



I William Thomas, hereby state that, on this 11th day of July, 1990 I caused a copy of the foregoing Plaintiffs' Responce to Federal Defendants' Opposition to Plaintiffs' Motion to Stay Criminal Proceedings, to be hand delivered to the office of Assistant U.S. Attorney Michael Martinez, at Judiciary Square, 555 4th Street, N.W., Washington, D.C. 20001.

William Thomas