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COMMUNITY v. CARVINO

December 8, 1986

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs
v.
JAMES J. CARVINO, Chief, Capitol Police, et al., Defendants



The opinion of the court was delivered by: PENN

 The plaintiffs filed this action for declaratory judgment and injunctive relief on November 26, 1986. They seek to have the Court declare that Section 156(a)(2) of the Capitol Police Traffic Regulations issued by the Capitol Police Board on April 12, 1976, violates the plaintiffs' First Amendment rights. At the time they filed their complaint, the plaintiffs also filed an application for temporary restraining order and motion for preliminary injunction. The case is now before the Court, as Motions Judge, *fn1" on the application for temporary restraining order. *fn2" Although the plaintiffs requested a hearing on November 26, 1986, Thanksgiving Day, the Court's Chambers determined that the earliest defendants planned to take any action to remove the statue from the Capitol Grounds, or make any arrests, was November 28, 1986 at 12:00 Noon; 24 hours after the statue was placed on the grounds. Defendants, having been advised that the Court would hear the matter on November 28, 1986, agreed to withhold any action until the Court had an opportunity to hear and rule on plaintiffs' application. Defendants advised that they agreed to maintain the status quo pending a hearing on the application in deference to the Court.

 On November 28, 1986, the Court heard arguments by the parties and thereafter concluded that the application for temporary restraining order should be granted. The Court so ruled in open court, setting forth the facts and law upon which it relied. This memorandum order incorporates that ruling.

 I

 Very briefly, the facts are as follows: On April 12, 1976, the Capitol Police Board promulgated regulations revising the Traffic and Motor Vehicle Regulations for the United States Capitol Grounds. Section 156(a)(2) of those regulations provides that no permit may be issued for a period of more than seven consecutive days and no permit may authorize demonstration activities having a duration of more than 24 consecutive hours. The regulations also provide that "immediately upon the conclusion of each demonstration activity carried out pursuant to a permit . . . all [props and equipment] permitted under [the regulations] shall be removed . . . from the Capitol Grounds." Regulation, Section 156(a)(3).

 On November 19, 1986, the plaintiffs applied for a permit to serve dinners to homeless people in the area on Thanksgiving Day on the Capitol Grounds, to hold a vigil on the grounds and to install a "modern day creche" on the grounds consisting of a man, woman and a baby sitting over a grate entitled "Third World America" and bearing the inscription, "And Still There is No Room At The Inn". On November 24, 1986, the defendants granted a permit to plaintiffs to hold round the clock vigil and to serve dinner on Thanksgiving day and to place the creche on the Capitol Grounds. The permit provided however "all approved Props and Equipment shall not remain within Capitol Grounds for more than 24 consecutive hours each day. Vehicle access to the plaza shall be permitted for purposes of loading/unloading Props and Equipment each day." See Permit issued to plaintiffs on November 24, 1986. The permit was granted for the period beginning November 27, 1986 and ending on December 3, 1986.

 The present dispute arises because the defendants contend that under the above section the plaintiffs are required to remove the creche from the Capitol Grounds every 24 hours. Defendants estimate that the creche, which is located on the site selected by the defendants, is 250 yards from the closest point off of the grounds. The defendants conceded that the creche may be removed at midnight or at any other time chosen by plaintiffs within each 24 hour period. Moreover, when the creche is removed, the defendants concede that it may be brought back on the grounds immediately after removal and that the plaintiffs are entitled to place the creche at the same location on the grounds pursuant to the permit issued by the defendants.

 The plaintiffs argue that the statue weighs 500 pounds, is very fragile and that it cannot be replaced if destroyed, and that the regulations would effectively prohibit the plaintiffs from placing the creche for longer than 24 hours. The plaintiffs argue that the defendants cannot compel them to move the sculpture and interrupt the vigil unless moving the sculpture in compliance with the regulations would further a significant or important government interest.

 II

 In order to be entitled to injunctive relief, the plaintiffs must establish that there is a strong likelihood that they will prevail on the merits, that they will suffer irreparable injury if injunctive relief is not granted, that the granting of injunctive relief will not substantially harm other interested parties in the proceedings and that the public interest favors granting injunctive relief. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 222, 559 F.2d 841, 843 (1977). In addition, "the necessary 'level' or 'degree' of possibility of success will vary according to the court's assessment of the other factors." Id.

 The Court is mindful of the applicable test:

 
The government may enforce reasonable time, place, and manner regulations as long as the restrictions 'are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'

 United States v. Grace, 461 U.S. 171, 177, 103 S. Ct. 1702, 1707, 75 L. Ed. 2d 736 (1983). Accord Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984), which approves the above test and notes that the test approved in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968) is essentially the same.

 The defendants cite five government interests in the regulations: (1) to ensure that there is no impression created that Congress endorses a particular demonstration, (2) to ensure that the "props" of demonstrations are not seen as permanent structures or additions to the Capitol Grounds, (3) to promote the free flow of traffic, (4) to keep the forum open to others, and (5) to aid the Capitol Police in keeping day-to-day control over the Capitol Grounds. The Court concludes, based on the ...


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