v.                         Civil Action No. 88-3130
                                    Judge Joyce Hens Green



Plaintiffs hereby move this Court to issue a Temporary Restraining Order to prevent the government from seizing the two flags used by plaintiff Picciotto in her demonstration.


On December 7, 1989, when the court most recently held a hearing in this matter, it was to consider an application for a Temporary Restraining Order which arose from plaintiffs' allegations that agents of the United States Park Police had interfered with plaintiffs' peaceful communicative efforts on various occasions during the fall of 1989.

One of plaintiffs' specific allegations in their application for TRO regarded an incident, on or about October 25, 1989, which involved two flags used by plaintiff Picciotto in her demonstration. See, , Summarization of Complaint and Facts Giving Rise to Immediate Necessity for Preliminary Injunction and Temporary Restraining Order, filed November 28, 1989, pare. 35.

At the hearing on December 7, 1989 the Court explained that the allegations set forth in plaintiffs' motion for a TRO seemed to go to the essence of the complaint itself. Therefore, the Court was of the opinion that those allegations would be better dealt with as part of the overall complaint, and resolved at trial rather than in a TRO hearing.


Unfortunately, the Court explained, due to an inundation of criminal cases, courts were having more and more difficulty finding the time to handle civil cases.

Committed as they are to a religious exercise, plaintiffs had no alternative but prayer and contentment with the Court's assurance that it would undertake further proceedings to settle this matter expeditiously.

Unfortunately, on June 1, 1990 (only two days after a TRO hearing in Picciotto, et. al. v. Lujan, et. al., CA. No. 90-1291, at which government agents assured this Court that the police would not disturb plaintiffs' demonstrations) Park Police officers twice seized Concepcion's flags and threw them to the ground. SEE, Declaration of Concepcion Picciotto, attached hereto.

Most recently on June 13, 1990, U.S. Park Police officers, acting in pre-arranged concert, seized two flags used by plaintiff Picciotto, without probable cause.

The Park Police still retain possession of Picciotto's flags.


Plaintiff's purpose in having the two flags at issue was to attraction the attention of the public to the issues of broad public concern, the communication of which she is in Lafayette to facilitate. Declaration of Concepcion Picciotto, para. 1.

Everyday since being deprived of the use of her flags for the purpose of attracting attention to the issues and opinions she attempts to communicate, plaintiff has suffered a burden in


her constitutionally protected expressive activities. 36 C.F.R. 7.96 (B)(2) is presently before the Court in this case upon plaintiffs' allegation that it is 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), formerly codified at 36 CFR 50.19(e)(11)(12), is both unconstitutional, having been promulgated under false presences 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.


Suppression of First Amendment exercise has been held to constitute "irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), and held to constitute "substantial money damages." City of Watseka v. Illinois Public Action Council, 796 F.2d 1559, Summarily Affirmed by the Supreme Court, slip opinion 86-631, January 27, 1987.

In light of the foregoing discussion, it is clear that the seizure of plaintiff Picciotto's flags was without probable cause, resulted in the suppression of her First Amendment rights.

Therefore she has met the familiar standards for temporary relief set forth in Virginia Petroleum Jobbers Ass'n v. PPC, 259 F.2d 921 (DC Cir. 1958) and WMATA v. Holiday Tours, 559 F.2d 841 (DC Cir. (1977). First, there is a likelihood that the plaintiffs will prevail on the merits of the Complaint.


Second, if relief is not granted, plaintiffs will be irreparably injured in their efforts to exercise their freedom of expression and assembly, and to be secure in their persons and property from unreasonable searches and seizures.

Third, the issuance of a Temporary Restraining Order will not harm the defendants, as they had no cause to seize the flags in the first place.

Finally, the public interest clearly lies in compelling the Government to avoid unnecessary restrictions on First Amendment freedoms.


WHEREFORE plaintiffs hereby pray the Court to issue a Temporary Restraining Order, for the purpose of restraining government defendants from seizing plaintiff Picciotto's two flags, or other lawful property without probable cause.

A proposed Order is attached.

Respectfully submitted
this 18th day of September , 1990,

/s/ Concepcion Picciotto
Concepcion Picciotto, Plaintiff, Pro Se
Post Office Box 4931
washington, D.C. 20008

/s/ W. Thomas
William Thomas
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt 410
Washington, D.C. 20005

Ellen Thomas
Peace Park Antinuclear Vigil
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005