A Quaker Action Group v. Hickel

• Decision Date: 24 June 1969
• Docket Number: No. 22983.,22983.
• Parties: A QUAKER ACTION GROUP et al. v. Walter J. HICKEL et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 176, 421 F.2d 1111 (1969)

A QUAKER ACTION GROUP et al. v. Walter J. HICKEL et al., Appellants.

No. 22983.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1969.

Decided June 24, 1969.

Mr. Morton Hollander, Atty., Dept. of Justice, with whom Messrs. Alan S. Rosenthal and Ralph A. Fine, Attorneys, Dept. of Justice, were on the brief, for appellants. Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, Joseph M. Hannon and Gil Zimmerman, Asst. U. S. Attys., also entered appearances for appellants.

Mr. William A. Dobrovir, Washington, D. C., with whom Messrs. Joseph L. Rauh, Jr., James F. Fitzpatrick, Ralph J. Temple and Lawrence Speiser, Washington, D. C., were on the brief, for appellees.

Before BAZELON, Chief Judge, BURGER^* and ROBINSON, Circuit Judges.

BAZELON, Chief Judge:

The plaintiff-appellees are several organizations that wish to conduct demonstrations on the sidewalk in front of the White House and in Lafayette Park, which faces the White House across Pennsylvania Avenue. Because they believe that certain regulations and implementing policy directives of the Department of the Interior abridge their First Amendment rights to assemble and petition the President by limiting the size of such demonstration and requiring a permit beforehand, the plaintiffs brought suit for a declaratory judgment that these restrictions are unconstitutional and for a permanent injunction against their enforcement. As an incident of this litigation, the District Court granted a preliminary injunction forbidding the defendants from interfering with the specific demonstrations planned, from imposing numerical restrictions on the size of demonstrations, and from enforcing the regulations requiring a prior permit.

In this appeal the Government claims that the trial judge abused his discretion in granting the preliminary injunction pending decision of the case in chief. For the reasons outlined below, we reject this contention. Because of the peculiar sensitivity of one issue involved — the safety of the President — we modify the injunction granted by the district judge, however, to permit the Department of the Interior to require a prior notice of planned demonstrations that will allow the Government, if it wishes, to seek a court order enjoining a particular demonstration.

I

The Department of the Interior has had exclusive jurisdiction over the sites in question since 1898. Although a departmental regulation, 36 C.F.R. § 50.19,¹ has for some years required a permit for any public demonstration in these and other areas under its control, no permit was in fact ever required for gatherings in Lafayette Park and on the White House sidewalk until August 10, 1967. On that date the regional director of the National Park Service, which is part of the Department, released a memorandum stating that the regulation would henceforth be enforced. The memorandum also added a new ground for denying a permit to the three appearing in the regulation: "No permit will be issued for the South sidewalk of Pennsylvania Avenue to a group of more than 100 persons. * * * No permit will be issued for Lafayette Park to a group of more than 500 persons."²

The memorandum contained no explanation for these numerical restrictions. A letter written later in the month by a Department of the Interior spokesman to a civil liberties organization, however, stated that the regional director had concluded "upon the basis of past experiences" that demonstrations larger than 500 persons in Lafayette Park would cause "permanent damage or subject the Government to substantial continued expenditures * * * for replacing injured shrubs and other plants." As for the White House sidewalk, the letter continued that large demonstrations "have a distracting effect on motorists" driving along Pennsylvania Avenue. "In addition, there have been occasions when pedestrian traffic has been forced off the sidewalk into the street."

Since August 1967 the regulations have been enforced, and protestors lacking a permit have been arrested. Mindful of these events, four of the five plaintiff organizations in this case sent letters on March 6 of this year requesting permits from the National Park Service for demonstrations they wished to hold in late April and early May. The Clergy and Laymen Concerned About Vietnam and the Women's Strike for Peace requested approval for demonstrations on the White House sidewalk at which they expected, respectively, 3,000 and 1,000 participants.

On March 13 the regional director of the Park Service wrote them that "taking into account pedestrian and vehicular traffic in the area, a demonstration of the magnitude indicated in your application cannot be reasonably accommodated. * * *" On the same day he declined to issue a permit to the Jews for Urban Justice until they furnished an estimate of the number of persons expected to participate in their planned sidewalk demonstration. Finally, the Action Committee on American-Arab Relations was told that the construction-rehabilitation work now going on in Lafayette Park precluded public demonstrations of any kind there.

After the denials of their applications, the plaintiffs filed this action on March 19, joined by a fifth organization, A Quaker Action Group, which also wished to hold a demonstration but had not applied for a permit because it feared that the number of participants might exceed the numerical limitations placed on such demonstrations and thus subject all its participants to arrest. In support of their allegations the plaintiffs filed numerous affidavits to demonstrate (1) the importance of the right to hold large demonstrations in Lafayette Park and on the White House sidewalk; (2) that much larger demonstrations than those permitted by the Department of the Interior could be accommodated in these areas without interfering with pedestrian traffic or other activities such as White House tourism; (3) that the permit system has been applied in an arbitrary and capricious way to harass would-be demonstrators or to deny permits altogether even though the numerical restrictions were not exceeded.

The Government on March 28 filed a memorandum in opposition to the motion for a preliminary injunction which advanced for the first time the safety of the President as a rationale for the restrictions upon demonstrations near the White House. In an accompanying affidavit, the present regional director of the Park Service stated that he had "carefully reviewed the policy determinations" and concluded that the security of the White House as well as the previously elaborated considerations of pedestrian and vehicular traffic required enforcement of the permit system with its numerical limits. The Government also submitted an affidavit executed by the director of the Secret Service, Mr. James Rowley, who stated that "the attendant security problems are such as to warrant keeping demonstrations entirely away from the south sidewalk on Pennsylvania Avenue * * * and the Lafayette Park area." Mr. Rowley rehearsed at some length the "problems of great magnitude" in "maintaining the security of the Executive Residence" because of its location in the center of a metropolitan area with a constant flow of tourists. His statement went on to describe, without reference to specific incidents, the difficulties encountered with protest demonstrations: "Situations with such dangerous potential for mass violence have occurred in close proximity to the White House on a number of occasions, and have resulted in blockage of gates and entrances leading to the Executive Residence and grounds, and in arrests for disorderly conduct."

At the hearing before the district court, the Government stipulated that it did not controvert the matters of fact set forth in the plaintiffs' evidentiary submissions, although the plaintiffs did not return the favor. After considering the matter for several weeks, the district court issued a preliminary injunction, accompanied by conclusions of fact and law. This court refused to stay the injunction pending an appeal; the Government then sought and obtained a stay from the Chief Justice of the United States until this court could decide the Government's appeal, which we have expedited.

II

The decision to grant a preliminary injunction normally lies in the discretion of the trial judge,³ and our scope of review is accordingly limited. Although the parties to this appeal have addressed lengthy briefs to the constitutionality of the restrictions placed upon demonstrations before the White House, our task is not to resolve the merits of that dispute.⁴ This is particularly true in this case since the Government has stipulated to the truth of the plaintiffs' affidavits only for purposes of the preliminary injunction.⁵ We limit our gaze accordingly to the issues of whether the trial judge abused his discretion in granting the injunction,⁶ or rested his analysis upon an erroneous premise.⁷

The standards which should guide the decision to grant a preliminary injunction have been often stated.⁸ The movant must show a substantial likelihood of success on the merits, and that irreparable harm would flow from the denial of an injunction. In addition, the trial judge must consider the inconvenience that an injunction would cause the opposing party, and must weigh the public interest as well.

The trial judge in this case did not proceed from an erroneous premise. He found, in so many words, that "plaintiffs are likely to prevail on the merits of this action;" that "any delay in the exercise of First Amendment rights constitutes an irreparable injury to those seeking such exercise;" and that "the convenience to defendants of continuing to enforce the numerical limitations and the permits requirements * * * is greatly outweighed by the harm to plaintiffs and all other...