UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiffs,

         v.                       Civil Action No. 88-3130 JHG

RONALD WILSON REAGAN, et. al.,
             Defendants.

DEFENDANTS' OPPOSITION TO PLAINTIFFS'
MOTION FOR A TEMPORARY RESTRAINING ORDER
AND PETITION FOR WRIT OF MANDAMUS

On September 18, 1990, plaintiffs filed yet another Motion for a Temporary Restraining Order in this matter, as well as a Petition for a Writ of Mandamus. For the reasons set forth below, plaintiffs, motion and petition should be denied.

Plaintiffs, latest requests can properly be characterized as companions to plaintiffs' June 18, 1990 Motion for a Preliminary Injunction in which plaintiffs sought to enjoin a possible criminal proceeding against Concepcion Picciotto---a motion this Court denied on July 18, 1990. The factual underpinnings to both the June motion and plaintiffs' latest submissions are as follows: plaintiffs, as the Court is aware, are perennial protesters in Lafayette Park. Ms. Picciotto, in particular, has been a fixture in the Park for several years.

In more recent times, Picciotto's particular demonstration site has consisted, among other things, of two signs four feet by four feet in size--the maximum permitted by federal regulation in terms of number (two) and sign size. See 36 C.F.R. § 7.96(g)(5) (x)(B)(2). On several occasions in June, Picciotto, in an

- 1 -

apparent effort to test the sign size restrictions, attached two United States flags to her signs--thereby making the signs larger than permitted by the regulation. After the Park Police on several occasions warned Picciotto of the violation, the flags were seized on June 13, 1990 and Picciotto was issued a Code of Federal Regulations ("CFR") violation--in effect a ticket--for the violation. /1

Plaintiffs then filed their June motion seeking to use this case as a vehicle to enjoin any criminal prosecution of Picciotto. Defendants argued, and this Court agreed, that if Picciotto desires to challenge any criminal prosecution she must do so in the context of that prosecution, not in this civil action. In their most recent motion, plaintiffs claim anew that the flags were unlawfully seized from Picciotto "without probable cause" and that the Park Police should be ordered to return the flags.

This Court should deny plaintiffs' motion without prejudice. The flags were seized by the Park Police for two reasons: (1) for use as evidence in a possible criminal proceeding; and (2) because Picciotto displayed a consistent pattern of ignoring Park Police directions to remove the flags from her signs. 2/ There can be no doubt that the Park Police were entitled to seize Picciotto's flags in the first instance as evidence for any later criminal proceeding.

1/ This factual recitation is drawn from plaintiffs' and defendants' June submissions in this matter.

2/ Indeed, Picciotto admits defying the directions of the Park Police in her September 18, 1990 declaration, wherein she describes her replacement of the flags on her signs after they were removed on two occasions by Park Police officers. See Picciotto Declaration, 3-11.

- 2 -

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 306-07 (1967). With such seizures there must, of course, be a nexus between the property seized and the crime charged Id. at 307. Such a nexus was clearly present here since the property seized--the flags--formed the very basis of the regulatory violation charged--excessive sign size made so due to the attachment of the flags to the signs.

Similarly, there can be no doubt that although ultimately the property seized should be returned to the person from whom it was seized, the Government is entitled to retain possession as evidence for use at trial, and in some instances even later, so long as it can establish a continuing interest in the property." United States v. Francis, 646 F.2d 251, 263 (6th Cir. 1981), cert. denied, 454 U.S. 1082 (1981); United States v. Hubbard, 650 F.2d 293, 303 n. 26 (D.C. Cir. 1980) ("Property lawfully seized may be retained pending exhaustion of its utility in criminal prosecution." United States v. Premises Known As 608 Taylor Avenue, 584 F.2d 1297, 1302-03 (3d Cir. 1978).

Because a criminal proceeding against Picciotto for her regulatory violation has not been concluded, Picciotto is currently not entitled to a return of her property. Indeed, because, as we understand it, the Criminal Division of the United States Attorney's Office presently intends to proceed against Picciotto for her June 13 violation, the Government may retain

- 3 -

the flags as evidence until after the forthcoming criminal charges are concluded. 3/

Accordingly, plaintiffs, Motion for a Temporary Restraining Order should be denied because they have not met the rigorous standard applicable to such motions. Plaintiffs must show: (1) that they are likely to succeed on the merits of their claims against the defendants, (2) that irreparable harm will befall them in the absence of relief; (3) that such injury outweighs any harm to the 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). .' The injury must be both certain and great; it must be actual and not theoretical." Kahane v. Secretary of State, 700 F.Supp. 1162, 1165 (D.D.C. 1988); Wisconsin Gas, 758 F.2d at 674.

As the foregoing has demonstrated, plaintiffs have not shown a likelihood of success on the merits; the flags were properly seized incident to the issuance of a criminal citation and are being retained during the pendency of criminal proceedings.

3/ Picciotto was given a citation on June 13, 1990 that did not list a court appearance date. On July 18, 1990, a notice was sent to Picciotto that she was required to appear in Court on August 15, 1990 at 9:30 a.m. Although we believe Picciotto did not appear at the appointed date and time, the undersigned are not completely sure that she failed to appear. In any case, the Criminal Division of the United States Attorney's office intends to issue another notice requiring Picciotto to appear in Court in mid-October, 1990.

- 4 -

Similarly, plaintiffs have shown no irreparable harm. As we stated in our opposition to plaintiffs, June attempt at immediate injunctive relief: "Picciotto--and the other plaintiffs--cannot use this civil action as a vehicle to avoid criminal prosecution for violating various National Park Service regulations." Defs' June 28, 1990 Memo. at 4. Their efforts to do so do not -constitute irreparable harm

Plaintiffs also lose on the balance of hardships and the public interest prongs of the immediate 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. Just as the earlier requested stay of criminal proceedings was unwarranted, so too is plaintiffs' current request to return the seized property prior to resolution of the criminal proceedings.

Finally, plaintiffs, Petition for a Writ of Mandamus should be denied. Mandamus is an extraordinary remedy that should be granted only when: "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." Council of the Blind v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983)(en bane) 13th Regional Corporation v. U.S. Department of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980). Since, as we have noted,

5

plaintiffs have no "clear right to relief" at this juncture, plaintiffs' petition should be denied.

Conclusion

For each of the foregoing reasons, defendants urge the Court to deny plaintiffs' Motion for a Temporary Restraining Order and Petition for Mandamus. A proposed Order is attached for the Court's convenience.

Respectfully submitted,

/s/ Jay B. Stephens
JAY B. STEPENS, DC BAR #177840
United States Attorney

/s/ John D. Bates
JOHN D. BATES, DC #934927
Assistant United States Attorney
/s/ Michael L. Martinez

MICHAEL L. MARTINEZ, DC BAR #347310
Assistant United States Attorney

- 6 -

CERTIFICATE OF SERVICE

I hereby certify that this 24th day of September, 1990, I sent one copy of the foregoing Federal Defendants' Opposition to Plaintiffs' Motion for A Temporary Restraining Order and Petition for Mandamus 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
MICHAEL L. MARTINEZ, DC BAR #347310
Assistant United States Attorney
Room 4810, Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 514-7161


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY HUDDLE, et al.,
             Plaintiffs,

         v.                       Civil Action No. 88-3130 JHG

RONALD WILSON REAGAN, et. al.,
             Defendants.

ORDER

Upon consideration of the plaintiffs' Motion for A Temporary Restraining Order and Petition for A Writ of Mandamus, the federal defendants, opposition thereto and the entire record in
this matter, it is by the Court this day of 1990, hereby

ORDERED, that plaintiffs' motion and petition be and hereby are DENIED.

 

UNITED STATES DISTRICT JUDGE

MICHAEL L. MARTINEZ
Assistant United States Attorney
Room 4810 Judiciary Center
555 Fourth Street, N.W.
Washington, D.C. 20001

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