Full-text: November 24 2003

United States District Court
for the Eastern District of Pennsylvania

	)
ACORN, et al.,	)
Plaintiffs,	)
)
v.	)
)
The City of Philadelphia, et al.,	)
Defendants.	)
	)

Plaintiffs’ Memorandum of Law in Opposition to
Defendants’ Motion to Dismiss 1 

Introduction

Plaintiffs are four national organizations that frequently engage in peaceful demonstrations and protests. Plaintiffs’ Amended Complaint ¶¶ 8-11 (“Am. Compl.”). All four allege that they have demonstrated on occasions when the President or others protected by the defendant Secret Service were present and intend to do so again in the future. Am. Compl. ¶¶ 8-11, 52-53; see also Declarations of Leslie Cagan (attached as Exhibit 1), Jeffery D. Blum (Exhibit 2), Olga Vives (Exhibit 3), and Steve Bachmann (Exhibit 4). Plaintiffs allege that the Secret Service “typical[ly]” engages in the practice of unconstitutionally discriminating against protesters and has done so “many times throughout the country.” Am. Compl. ¶¶ 23, 24.

As explained in plaintiffs’ Amended Complaint, the discrimination takes two forms. “Under the first form, the protesters are moved further away from the location of the official and/or { p.2 } the event, allowing people who express views that support the government to remain closer. Under the second form, everyone expressing a view — either critical or supportive of the government — is moved further away, leaving people who merely observe, but publicly express no view, to remain closer.” Am. Compl. ¶ 3.

In the Amended Complaint, plaintiffs cite fifteen (15) examples of this discrimination, almost all involving the President and almost all of which occurred in the one year prior to the filing of the Complaint. Am. Compl. ¶¶ 28-49, 50, 51. These were not the only incidents in which the Secret Service engaged in such practices; Plaintiffs could have cited additional examples. See Ex.1 ¶ 5; Ex.2 ¶ 5(e)(f); Plaintiffs and their members allege that they have been the victims of the discrimination cited in the Complaint and similar discrimination in other incidents. Compl. ¶ 52; Ex.1 ¶¶ 5-6; Ex.3 ¶¶ 2-3; Burks Decl. ¶¶ 2-11 (attached as Ex.5).

The Secret Service has continued to discriminate against the named plaintiffs even after the filing of the Complaint. Protestors associated with plaintiffs NOW were kept blocks away from the building where President Bush was speaking during an appearance in Little Rock, Arkansas, on November 10, 2003. Those wishing to demonstrate in support of the President were allowed to congregate right in front of the venue. Ex.5 ¶¶ 1-11; see also Treadway Decl. ¶¶ 1-12 (attached as Ex.6). Similarly, on November 7, 2003, Secret Service agents prevented protestors associated with plaintiff NOW from demonstrating near the building where President Bush was signing the Partial Birth Abortion Bill, and instead placed them in front of another federal building down the block. Even as the Secret Service moved plaintiff NOW, it permitted members of the general public to traverse the streets adjacent to the site of the signing ceremony. Ex.3 ¶¶ 2-4.

The Secret Service has moved to dismiss the Complaint, citing a policy that prohibits such practices. The Secret Service does not deny that discriminatory practices occur. Nor could they, { p.3 } because on a motion to dismiss the allegations of the Complaint must be taken as true. Instead, they argue that the likelihood of the policy being applied in the future to the plaintiffs is “too speculative” to confer standing. Def. Br. at 9. Under any definition of standing, plaintiffs’ allegations of at least monthly violations and a current intention to engage in future demonstrations, including demonstrations at the upcoming Presidential party conventions, see Ex.1 ¶¶ 7-13; Ex.2 ¶ 6; Ex.3 ¶ 5; Ex.4 ¶ 4; is more than sufficient for the Court to deny the motion.

Argument

I.
At the Motion to Dismiss Stage,
the Facts Pleaded in the Complaint are Taken as True.

The United States Supreme Court has stated that when matters come before it “on appeal from a Rule 12(b) motion to dismiss on the pleadings ... we must presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 104 (1988) (citing Lujan v. National Wildlife Fed’n, 497 U.S. 871, 889 (1990)). See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (same).

Following this directive, the Third Circuit has stated that where “defendants move to dismiss a complaint under Rule 12(b)(1) for failure to allege subject matter jurisdiction we treat the allegations of the complaint as true and afford the plaintiff the favorable inferences to be drawn from the complaint.” NE Hub Partners, L.P., v. CNG Transmission Corp. {89kb.txt, 89kb.txt, 161kb.pdf}, 239 F.3d 333, 341 (3d Cir. 2001); see also Turicentro, S.A. v. American Airlines Inc. {49kb.txt, 66kb.pdf, 66kb.pdf}, 303 F.3d 293, 300 (3d Cir. 2002); Bischoff v. Osceola County of Florida {54kb.html, 110kb.pdf}, 222 F.3d 874, 878 (2d Cir. {sic: 11th Cir.} 2000) (“[W]hen standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting from the defendant’s conduct { p.4 } may be sufficient to show standing.”). Pursuant to this guidance, a district court within this circuit responding to a 12(b) motion alleging a lack of subject matter jurisdiction stated:

Tolan v. United States {106kb.pdf}, 176 F.R.D. 507, 510 (E.D. Pa. 1998). 2  {n.1, p.4}

Plaintiffs in this case have submitted six declarations in opposition to the motion. Four of those declarations are by the plaintiffs themselves. They are consistent with and amplify the allegations in the Complaint that plaintiffs have engaged in demonstrations on occasions involving the President (or other protected officials) and intend to do so in the future. Three of the declarations demonstrate that, notwithstanding the Secret Service’s written policy, the practice of discriminating against protesters has continued even after the filing of the Complaint. The Court may consider those declarations in resolving this motion. Warth v. Seldin, 422 U.S. 490, 501 (1975).

II.
Plaintiffs Have Standing
to Seek Prospective Injunctive Relief.

In Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 180-181 (1999), the Supreme Court affirmed a litigant’s entitlement to injunctive relief, stating: { p.5 }

An association, such as plaintiff UFPJ, has standing to represent its members, its constituent organizations, and the members of those constituent organizations. New York State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 9-10 (1988); Charles Alan Wright et al., Fed. Prac. & Proc. § 3531.9 at 991-92 (Supp. 2003).

The only dispute in this case is over the third component of standing identified in Friends of the Earth. Thus, the Secret Service argues that, even assuming that the practices occur, the likelihood that a plaintiff will be subjected to them is too speculative. This argument includes two factual assumptions: (1) the Secret Service only rarely engages in the challenged practices; (2) the plaintiffs only rarely demonstrate. Both factual assumptions are expressly contradicted by the Complaint and thus the motion must be denied.

First, the Secret Service argues that it prohibits the challenged practices and therefore, it is unlikely that they occur often. Def. Br. at 12. The Complaint, however, alleges examples of the practices on at least a monthly basis, that the practices occur “many times throughout the country,” and that they occur “typical[ly].” Am. Compl. ¶¶ 23, 24, 50-51. The declarations of Olga Vives, Lisa Burks, and Terry Treadway indicate that the practices have continued even after the filing of the Complaint. At this stage, plaintiffs need not establish that the practices are frequent. They need only allege that they are so. The Pitt News v. Fisher {43kb.txt, 43kb.txt}, 215 F.3d 354, 360 (3d Cir. 2000) (“To { p.6 } demonstrate its standing to sue, a plaintiff must only allege that they have suffered sufficient injury...”) (emphasis in original). Plaintiffs have done so. See also LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) (affirming entry of an injunction against the INS from conducting farm and ranch checks of migrant farm housing without a warrant, probable cause, or articulable suspicion, even though the INS had already adopted a policy requiring those safeguards).

Second, the Secret Service argues that plaintiffs cannot establish that they demonstrate with sufficient frequency to support an expectation that they will be subjected to the challenged practices. Def. Br. at 8-9. In the Complaint, however, plaintiffs allege that they “will” demonstrate frequently at events where persons protected by the Secret Service are present. Am. Compl. ¶¶ 8-11, 53. Thus, the likelihood of such demonstrations is neither “speculative” nor “indefinite.” It is precise and definite. If the Amended Complaint left any doubt about plaintiffs’ intentions, the declarations resolve them. For example, plaintiff UFPJ plans to attempt to demonstrate at every appearance by the President in the future and has already begun organizing efforts for demonstrations at the political party conventions where persons protected by the Secret Service will be present. 3  {n.1, p.6} Ex.1 ¶¶ 7-13. All of the other plaintiffs have expressed similar intentions regarding demonstrations at presidential visits. Ex.2 ¶¶ 6-7; Ex.3 ¶ 5; Ex.4 ¶¶ 4 and 8;

Courts have frequently upheld standing under facts similar to or less definite than these. The allegations in this case are that the plaintiffs’ First Amendment rights have been abridged by widespread practices of the Secret Service. When parties allege that a policy abridges First Amendment rights, courts have found standing even if the policy has never been enforced against { p.7 } anyone. The Supreme Court has acknowledged on numerous occasions that “[t]he threat of sanctions may deter [the exercise of First Amendment freedoms] almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963). Accordingly, plaintiffs “do[] not bear a heavy burden to ‘demonstrate a claim of specific present objective harm or a threat of specific future harm.’” Briggs v. Ohio Elections Comm’n {22 kb html/txt}, 61 F.3d 487, 492 (6th Cir. 1995) (quoting Meese v. Keene, 481 U.S. 465 (1987)). In Déjà Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville and Davidson County {96kb.txt, 329kb.pdf}, 274 F.3d 377, 399 (6th Cir. 2001), cert. denied, 535 U.S. 1073 (2002), the Sixth Circuit recognized that “[a] mere threat to First Amendment interests is a legally cognizable injury.” 4  {n.1, p.7} See also Meese, 481 U.S. at 472 (noting that the challenged governmental action “need not have a direct effect on the exercise of First Amendment rights; ... [rather, it] must merely have caused or must threaten to cause a direct injury in the plaintiffs”).

Pre-enforcement challenges to statutes that threaten First Amendment interests are permissible where plaintiffs can establish a credible threat of sanctions. See, e.g. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298-99 (1979) (plaintiffs had standing to bring pre-enforcement challenge to restrictions on deceptive statements); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (plaintiff who distributed anti-war handbills had standing to bring pre-enforcement challenge to trespass statute); Doe v. Bolton, 410 U.S. 179, 188-89 (1973) (doctors had standing to bring pre-enforcement challenge to abortion restrictions). The “credible threat” standard is not a stringent one. In Babbitt, plaintiffs challenged a statute that imposed criminal penalties for certain deceptive statements. The Supreme Court found that plaintiffs had standing to challenge the statute even though no one had ever been fined under it and the government argued that it might never invoke it. Babbitt, 442 U.S. at 300-01. The Court held that plaintiffs were required merely to { p.8 } establish “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Id. at 298; see also Doe, 410 U.S. at 188; New Hampshire Right to Life Political Action Comm. v. Gardner {41 kb html/txt, 69 kb html/txt}, 99 F.3d 8, 15 (1st Cir. 1996) (“courts will assume a credible threat of prosecution in the absence of compelling contrary evidence”). 5  {n.1, p.8}

Similarly, in cases that do not directly involve the First Amendment, the courts have found standing on facts similar to or less definite than those in this case. In Allee v. Medrano, 416 U.S. 802, 815 (1974), the Supreme Court stated that in the face of “a persistent pattern of police misconduct, injunctive relief is appropriate.” Although that ruling came in response to a particularly egregious campaign of lawless conduct on the part of Texas police departments that sought to destroy a campaign to organize farm workers, circuit and district courts have understood Allee’s directive to apply to less draconian, but similarly on going police practices that violate the constitution. See Riggs v. City of Albuquerque, 916 F.2d 582, 585-86 (10th Cir. 1990) (affirming standing as a result of ongoing illegal police surveillance of plaintiff’s activities) Illinois Migrant Counsel v. Pilliod, 540 F.2d 1062, 1067 (7th Cir. 1976) (affirming standing of six individuals and civil rights organizations seeking injunctive relief to prohibit the INS officers from stopping individuals solely on the basis of their ethnicity, which practice was evidenced by only three individual stops and two farm dormitory raids); LaDuke, 762 F.2d at 1318; Lopez v. City of Rogers, Arkansas, 2003 U.S. Dist. Lexis 14570 (W.D. Ark. 2003) {No. 01-CV-5061} (finding standing where several named plaintiffs in a proposed class had been stopped and/or questioned by the police on multiple occasions solely because of their ethnicity); National Congress for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 159-62 (S.D.N.Y. 1999) (affirming standing of six individuals seeking { p.9 } injunctive relief against NYPD’s Street Crime Unit practice of unconstitutionally stopping and frisking individuals without probable cause or even reasonable suspicion); Maryland State Conference of NAACP Branches v. Maryland Dep’t of State Police, 72 F. Supp. 2d 560, 564-65 (D. Md. 1999) (affirming standing of the NAACP and several minority motorist seeking injunctive relief against practice of racially discriminatory enforcement of vehicular codes).

The Supreme Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), upon which the Secret Service almost exclusively relies, predates most of these injunctive rulings. Lyons arose out of a single individual’s effort to secure both damages and injunctive relief to end the Los Angeles Police Department’s practice of applying a particular chokehold. Although the Court ruled that Lyons had standing to pursue a damages action, it held that his fear of being subjected in the future to similar restraint was too speculative. Specifically, the Court stated that the likelihood of a similar encounter with the police was remote, especially in light of its assumption that individuals conduct their activities within the law. Id. at 103 (citing O'Shea v. Littleton, 414 U.S. 488, 497 (1974)). In order for Lyons to have another unconstitutional encounter with the police, he would have to be “arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, threatening deadly force or serious bodily injury.” Id. at 108. Clearly, the facts of this action are distinguishable from those the Supreme Court encountered in Lyons. 6  {n.1, p.9}

First and perhaps most importantly, the very situation that has made plaintiffs the subject of the Secret Service’s interdiction, their expression of opposition to the present political administration, is the basis for their entitlement to constitutional protection. Specifically, it is plaintiffs’ right to dissent that has made them the target of the Secret Service. The decision in { p.10 } National Congress for Puerto Rican Rights, 75 F. Supp. 2d at 161, granting standing to individuals stopped without probable cause, is particularly instructive:

Like the situation in National Congress, and unlike the situation in Lyons, where the Court hypothesized that the litigant would only face unconstitutional police treatment if he broke the law by resisting arrest, here plaintiffs allege that they face the Secret Service practices only when they are in involved in conduct that is expressly guaranteed them by the First Amendment. Considering the fact that plaintiffs’ conduct is constitutionally protected, rather than criminally proscribed, this Court need not view plaintiffs’ allegation that they will continue to demonstrate with the skepticism that was present in Lyons.

Second, unlike the situation in Lyons, which was brought by a single individual who could establish only that the Los Angeles police had utilized the chokehold on ten other individuals, here plaintiffs consist of four national organizations representing millions of members who have already been subjected to the Secret Services unconstitutional actions in no fewer than fifteen instances, who have been subjected to these illegal practices even since the Amended Complaint was filed, and who have expressed their clear intent to demonstrate on every occasion when the President or Vice President speak in public, including the two party conventions. See Ex.1 ¶¶ 7-13; Ex.3 ¶ 5. The { p.11 } Supreme Court has declared that proof of past injuries, especially of a repetitive character, is material to the issue of likely reoccurrence, Kolender v. Lawson, 461 U.S. 352, 355 n.3 (1983).

These factors make this action distinguishable not only from Lyons but also from Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990), and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), upon which the Secret Service also relies. In National Wildlife Federation, the trial court, ruling on a Rule 56(e) motion, determined that the National Wildlife Federation’s members lacked standing to challenge the Secretary of the Interior’s decision to withdraw lands from federal protection. Specifically, the court found that the plaintiffs had failed to establish that the Secretary’s withdrawal decision had adversely affected their recreational and aesthetic enjoyment of the lands in question, given the fact that only 4,500 acres out of 5.5 million were affected by the Secretary’s actions. Affirming the dismissal, the Supreme Court specifically stated, “Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent’s members uses unspecified portions of an immense tract of territory.” Lujan, 497 U.S. at 889. Similarly, in Defenders of Wildlife, the Supreme Court rejected a conservation group’s challenge to the Secretary of the Interior’s failure to promulgate regulations that would help preserve endangered wildlife in overseas habitats. As the organization’s members had only asserted their intention to return to the endangered habitats at some unspecified point in the future, the Court ruled that the risk of future harm to plaintiffs was insufficiently “imminent” to warrant injunctive relief and dismissed their complaint on summary judgment. Defenders of Wildlife, 504 U.S. at 564.

Rather than supporting defendants’ argument, both of these cases highlight the difference between Rule 56(e) and Rule 12(b). Specifically, whereas the plaintiffs’ burden is more demanding at the summary judgment phase of litigation, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presume { p.12 } that general allegations embrace those specific facts that are necessary to support the claim.’” Defenders of Wildlife, 504 U.S. at 561 (quoting National Wildlife Federation, 497 U.S. at 899). Moreover, the plaintiffs’ intentions in the conservation cases to return “someday” are in stark contrast to the plaintiffs’ stated intentions in this case. Plaintiffs do not intend to demonstrate someday. They intend to demonstrate every day possible when the President or Vice President speaks publicly. That intention is more than sufficient to justify standing in this case and the motion should be denied.

Conclusion

For the reasons stated above, the motion to dismiss should be denied. In addition, because the practices deprive plaintiffs of their First Amendment rights on a frequent and ongoing basis, it is important that this case move promptly to a resolution. Accordingly, plaintiffs not only ask this Court to deny defendants’ motions but to schedule a discovery conference pursuant to Federal Rule 16 at the Court’s earliest convenience. A proposed order {omitted here} is attached immediately after this memorandum. { p.13 }

 

Witold J. Walczak, Esq. American Civil Liberities Union Foundation of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736	Stefan Presser, Esq. (SP120) ACLU of Pennsylvania Foundation 125 South Ninth Street Philadelphia, PA 10107 (215) 592-1513 ext. 116
Arthur Spitzer, Esq. ACLU of the National Capital Area 1400 20th Street, NW Washington, D.C. 20036 (202) 457-0800	Christopher A. Hansen, Esq. American Civil Liberties Union Foundation 125 Broad Street – 18th floor New York, NY 10004 (212) 549-2606

Attorneys for Plaintiffs { p.14 }

______________________

Certificate of Service

I, the undersigned, do hereby certify that the foregoing Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss with supporting declarations along with a proposed Order were served on Defendants on November 24, 2003, addressed as follows by the service indicated below:

Footnotes

{Each footnote appears entirely on the same page with its text reference. Each footnote is numbered “1” in the original, but renumbered here sequentially}.

 1  Plaintiffs’ Amended Complaint alleges that the Secret Service and the local police in Philadelphia, acting pursuant to instructions from the Secret Service, have engaged in unconstitutional practices. Am. Compl. ¶¶ 15-54. Both the Secret Service and the City of Philadelphia have filed motions to dismiss on identical grounds. Although plaintiffs shall refer to defendants collectively as the “Secret Service,” plaintiffs’ arguments are directed to both motions.

 2  {n.1, p.4} Indeed, United Transportation Union v. ICC, 891 F.2d 908 (D.C. Cir. 1989), the one Rule 12(b) case that the Secret Service cites, specifically recognizes the principle that the rule requires acceptance of the facts as plead. Id. at 911. The exception that United Transportation Union carved out concerning the lower weight to be afforded future predictions regarding the actions of third parties (who are presumably not before the court) is not applicable in this instance. Here plaintiffs have alleged unequivocally that they intend to continue demonstrating. They also have alleged that the Secret Service has a practice of interfering with these political assemblies. Unless the Secret Service intends to make the incredible assertion that it can not be known whether the President will in fact ever again make forays outside the White House and no federal official protected by the Secret Service will do so, there are no third parties whose conduct must be hypothesized so as to defeat plaintiffs’ standing under the analysis set forth in United Transportation Union.

 3  {n.1, p.6} As the Secret Service notes, it protects more than just the President. Def. Br. at 10, n.5. Plaintiffs’ allegations regarding the Secret Service’s discriminatory protester practices extend to all officials protected by the agency, not just the President. Am. Compl. ¶ 5 (“any event where the Secret Service plays a role in arranging security”). Most demonstrations, of course, are directed at the President or Vice President, but the range of protected officials increases the likelihood that the practices will be applied to the plaintiffs’ demonstrations.

 4  {n.1, p.7} Most of these cases involve policies or statutes, not practices. Because plaintiffs here allege that the practices occur frequently, the same principles apply.

 5  {n.1, p.8} At least one individual has been criminally prosecuted for failing to obey the Secret Service’s orders, which he viewed as unconstitutional for the reasons alleged in this Complaint. Dan Huntley, Commentary, Charlotte Observer, Nov. 16, 2003, at 1Y {copy}. {United States v. Brett A. Bursey).

 6  {n.1, p.9} Lyons was decided upon a preliminary injunction record and not on motions under Rules 12(b) or 56(e).

______________________

Exhibit 1

{Case caption, omitted}

I, Leslie Cagan, hereby declare:

I am the National Coordinator of United for Peace and Justice (UFPJ), one of the plaintiffs in this case.

2.  UFPJ is a coalition of more than 650 local groups and national organizations throughout the Untied States who have joined together to oppose the current administration’s policy of militarism and warfare, and to promote peace and economic justice. UFPJ’s priorities include educating the public about the current administration’s threat to civil liberties and immigrant’s rights and the dangers of globalization and nuclear proliferation. The organization promotes its agenda through public education, media efforts, campaigns directed at policy makers, and numerous protest activities. Founded in October, 2002, UFPJ and its participating organizations have already helped organize hundreds of protests and rallies around the country, and organized the two largest demonstrations in the United States against the Iraq war.

3.  UFPJ itself has members. Each of the 650 constituent organizations also has members, although not all have formal membership structures. When I refer in this declaration to UFPJ, I include the members of UFPJ, the constituent organizations, and the members of the constituent organizations. { p.2 }

4.  I would estimate that in any average week, UFPJ is involved in several demonstrations or protests somewhere in the United States.

5.  We have participated in demonstrations or protests at appearances by the President, Vice President, or other high ranking officials protected by the Secret Service. We participated in a demonstration when the President was in New York, N.Y. in July, 2003. We also participated in a demonstration when the Attorney General was in New York, N.Y. in September, 2003. In addition, I am advised that some of the other demonstrations in which UFPJ has played a role are the following: Our constituent group, Andersonville Neighbors for Peace, participated in a demonstration at the Sheraton Hotel in Chicago, Illinois, when the President was there on September 30, 2003. New Jersey Peace Action and the American Friends Services Committee, affiliated with UFPJ, participated in a demonstration at the University of New Hampshire in late 2002 or early 2003 when the President was there. Individuals affiliated with UFPJ participated in a demonstration in Fairborn, Ohio on July 4, 2003, when the President was there. Individuals associated with UFPJ participated in a demonstration in Dearborn, Michigan on April 28, 2003 when the President was there. Individuals affiliated with UFPJ participated in a demonstration in Cape Girardeau, Missouri in October, 2000 when the President and Vice President visited.

6.  We have participated in some of the demonstrations or protests listed in the Complaint in this case. I am advised that our participation included at least the following: The constituent member group Coalition for Peace Action was one of the sponsors of the demonstrations in Trenton, New Jersey cited in the Complaint. The Houston Peace and Justice Coalition, which is also affiliated with UFPJ, participated in the Houston, Texas demonstration. The UFPJ affiliated Merton Center was involved in the demonstration in Neville Island, Pennsylvania. UFPJ affiliated Global Exchange was involved in the Stockton, California demonstration. UFPJ { p.3 } affiliated Instead of War Coalition was involved in the January, 2003 demonstration in St. Louis. At least one person associated with UFPJ participated in the Phoenix, Arizona demonstration cited in the Complaint.

7.  UFPJ will certainly participate at numerous, additional demonstrations or protests at appearances by the President, Vice President or other high ranking officials protected by the Secret Service for the foreseeable future.

8.  UFPJ has begun development of a work plan for the upcoming year. That draft work plan reflects that UFPJ has made it a priority to engage in demonstrations and/or protests where the President is appearing. We will attempt to demonstrate at as many of those appearances as we can.

9.  The work plan provides that: “UFPJ will use the opportunities provided during the election year to focus greater attention on the ongoing reality of war and empire and the intensifying war at home. We will maintain an activist presence and increase pressure on policymakers so as to emerge as a stronger and more vibrant coalition on November 6, 2004, regardless of who is elected. For instance, we will encourage the member groups of UFPJ to organize protest activities whenever Bush or Cheney or any of the Democratic Party candidates appear in their city.”

9.  It is not possible for us today to say that we will demonstrate at a specific location on a specific day when the President will be present because his schedule is not made public in advance.

10.  UFPJ has already engaged in planning for demonstrations at both of the upcoming major political party conventions. We will be demonstrating during the conventions. { p.4 }

11.  Again, our work plan for the next year provides that: “The Democratic National Convention in late July in Boston and the Republican National Convention in late August in New York provide an important opportunity for broadly promoting a vision of peace and justice and pressuring the candidates and both parties on the urgency of stopping war and empire. For the Democratic Convention we will activate around the demand for ‘an agenda with backbone.’ There will be a wide range of activities in Boston, all intended to educate the candidate, educate the delegates, and, most importantly, mobilize the public.”

12.  The work plan continues that: “For the Republican Convention, UFPJ is organizing a massive demonstration on Sunday, August 29 through midtown Manhattan into Central Park under the theme “The World Says No to Empire, War and Greed.” This demonstration will be the central rallying point for our grassroots base in 2004 and will have a truly national scope. UFPJ will work with the diverse constituencies impacted by the Bush Agenda to mobilize the broadest and largest possible turnout.

13.  When the election begins, UFPJ will engage in demonstrations at events hosted by the major party candidates. Our work plan provides that: “UFPJ will organize a series of coordinated local actions to highlight our issues and hold candidates accountable to them, including a visible and assertive street presence wherever major candidates appear, including the presidential and vice presidential debates, demanding an end to the occupation and empire-building agenda.”

I declare under penalty of perjury under the laws of the United States of America {28 U.S.C.§ 1746} that the foregoing is true and correct.

Executed on November _____, 2003

______________________

Exhibit 2

{Case caption, omitted}

Declaration of Jeffrey D. Blum

1.  I am executive director of USAction, Inc.

2.  USAction is a consumer organization which campaigns for social, racial, economic and environmental justice for all. USAction has thirty-four affiliated organizational members, representing over three million members.

3.  One important way in which USAction carries out its purposes is by expressing its views on issues of public importance, both to the general public and to the nation’s political leaders. Part of how we and our members do that is through peaceful, public demonstrations.

4.  In particular, USAction and its members have participated in demonstrations or protests at appearances by the current President and Vice President. USAction and its members have probably participated in dozens of such activities in the past three years. We intend to continue those activities during the current election year because an election campaign is an especially important time for the people to be aware of the flaws in the administration’s policies. It is also important for the President and Vice-President to be aware that their policies and actions are unpopular with many Americans.

5.  Specifically,

(a)  USAction organized a demonstration in front of Vice-President Cheney’s home on June 6, 2003, in which 500 people participated.

(b)  USAction affiliate Arizona Citizen Action participated in three presidential protests during September of 2002, October of 2002, and August of 2003. They are planning on protesting when Bush visits AZ at the end of this month (November, 2003).

(c)  USAction affiliate Missouri Progressive Vote Coalition participated in two presidential protests; one on August 26, 2003 at a presidential fundraiser in downtown St. Louis and another on January 20, 2003 at a Bush visit in South St. Louis, one person was arrested for refusing to protest in the “presidential protest zone.” MPVC is planning to protest at another Bush { p.2 } fundraiser in downtown St. Louis on January 5, 2003.

(d)  USAction affiliate New Jersey Citizen Action participated in at least three demonstrations at presidential events. These demonstrations took place during January of 2001, June of 2003, and August of 2003. NJCA is planning on organizing a protest against Bush when he visits Whippany, NJ on December 1st for $2,000 per person fund-raiser.

(e)  USAction affiliate New Mexico Progressive Alliance for Community Empowerment participated in three presidential protests during January of 2003, May of 2003, and September of 2003.

(f)  USAction’s Pennsylvania affiliate, Citizens for Consumer Justice, participated in four presidential protests; during January of 2003 in Scranton, PA, the spring of 2003, December of 2002, and during the summer of 2003.

(g)  USAction affiliate Citizen Action of New York is planning presidential protests during the Republican National Convention in September, 2004.

6.  Both USAction and its members will certainly participate at additional demonstrations or protests at appearances by the President and Vice President in the coming weeks and months. We are not able to name all the specific times and places of upcoming Presidential or Vice Presidential appearances at which we and our members will demonstrate, because the President’s and Vice President’s schedules are not made public in advance.

7.  Most often, we only learn about a Presidential or Vice Presidential appearance a day or two in advance. Despite that very short notice, we often attempt to organize a protest or demonstration, and frequently succeed. I can, however, say with certainty that USAction and its members will seek to engage in dozens of demonstrations or protests at Presidential or Vice Presidential appearances in the coming election year.

I affirm under penalties of perjury {28 U.S.C.§ 1746} that the foregoing is true and correct.

Executed this twenty-second day of November, 2003.

______________________

Exhibit 3

{Case caption, omitted}

Verification of Olga Vives

I, Olga Vives, in my capacity as the National Organization for Women Vice President for Action verify under penalty of perjury {28 U.S.C.§ 1746} that the following statements are true and correct.

1.  One of the key roles of NOW is to express our views on issues of public importance. We do that, in part, by public, peaceful demonstrations.

2.  Even since the filing of this action NOW has experienced problems in communicating opposition to the Bush administration as a result of Secret Service interference. On November 7th, 2003, NOW activists were prevented from demonstrating against George W. Bush in front of the Reagan Building in Washington, DC. The day before, our organizer Nitchie Ward, called the Park Police and advised them that we were going to { p.2 } demonstrate on the sidewalk of the Reagan Building, on 14th Street, at the time of the president’s signing of the Partial Birth Abortion Ban. When our organizers reached the building, on the 14th Street side, she was told by Secret Service agents that no demonstrations were allowed anywhere around the perimeter of the Reagan Building. We then asked if we could demonstrate across the street, facing the Reagan Building, at the Commerce Department. We were also denied that request. We asked that we be allowed to demonstrate on Freedom Plaza, across the street from the Reagan Building, on the Pennsylvania Avenue side, and we were turned down. Then they moved us to the Washington, DC Executive Building, a block down from the Reagan Building, where we were told we could hold the demonstration by the entrance. This, of course, prevented us from demonstrating against George W. Bush — we had no reason to picket the Washington, DC Executive Building.

3.  The Secret Service was very threatening in words and deeds. They threaten to arrest us if we didn’t move quickly. They prevented our organizers from seeking advice from the office as to what to do as they were being forced to clear the area without allowing any discussion or presenting any reason as to why we were not allowed to picket and hold signs where the president was signing the legislation we opposed.

4.  Even as we were turned away, we could see that members of the general public were allowed to remain on the street in front of the Reagan Building.

5.  The National Organization for Women will continue to demonstrate throughout the country at appearances by the President and Vice-President whenever we have advance { p.3 } notice. These demonstrations will be held by our activists based in over 500 chapters in the United States and will increase in 2004 with the presidential elections. We estimate that there will be several hundred demonstrations over the course of the next year as the nation heads into the 2004 presidential election.

6.  Obviously we often do not know and can not give advance notice to our chapters and activists of the President’s appearances until the day of or the day before the appearance.

Signed on this day, the 21st of November, 2003.

______________________

Exhibit 4

{Case caption, omitted}

Verification of Steve Bachmann

I, Steve Bachmann, in my capacity as the General Counsel to ACORN verify under penalty of perjury {28 U.S.C.§ 1746} that the following statements are true and correct.

1.  ACORN is the nation’s largest community organization of low and moderate-income families, with over 150,000 member families organized into 700 neighborhood chapters in 51 cities across the country. ACORN’s priorities include: better housing for first-time-home buyers and tenants, living wages for low-wage workers, more investment in our communities from banks and governments, and better public schools. ACORN achieves its goals by building community organizations through direct action, negotiation, legislation, and voter participation Plaintiff has and will continue to organize protests across the country calling attention the numerous ways in which the present administration’s policies are at odds with the needs of persons having low income.

2.  One of the key roles of ACORN is to express our views on issues of public importance. We do that, in part, by public, peaceful demonstrations.

3.  ACORN has participated in demonstrations or protests at appearances by the President, Vice President, or other high ranking officials.

4.  Both ACORN and its members will certainly participate at additional demonstrations or { p.2 } protests at appearances by the President, Vice President or other high ranking officials.

5.  It is not possible for us today to say that we will demonstrate at a specific location on a specific day when the President will be present because his schedule is not made public in advance.

6.  When we determine that the President is appearing in a location, we frequently have only a day or two to organize and carry out a protest or demonstration.

7.  Nevertheless, we often attempt to organize a protest or demonstration.

8.  ACORN is engaged in internal deliberations to determine the extent to which it will seek to engage in peaceful demonstrations at each of the major political party conventions next year and that the President, Vice President and other officials protected by the Secret Service will be present.

Executed on this the 21st day of November 2003.

______________________

Exhibit 5

{Case caption, omitted}

Declaration of Lisa Burks

Lisa Burks deposes and says:

1.  I am an adult resident of the State of Arkansas. I make this declaration based upon my own knowledge and observations, except where specifically noted otherwise.

2.  I am the President of the Hot Springs, Arkansas, chapter of the National Organization of Women (NOW), and Vice President for Legislation of the Arkansas NOW. I learned from a newspaper article on Saturday, November 8, 2003, that President Bush would be in Arkansas on Monday, November 10, 2003, for a mid-morning fundraising event at the Statehouse Convention Center in downtown Little Rock. NOW encouraged its members to go to site to express their views to the President and others attending this event.

3.  I decided to do that, and I arrived downtown at about 9:30 a.m. I parked my car behind the library and walked to where people had planned to meet, across the street from the Convention Center, on the south side of { p.2 } Markham Street near Scott Street. I had a sign that said “BUSH = HIGH UNEMPLOYMENT — NO BUSH NO WAY.” The son of the Hot Springs NOW chapter Vice President was with me. His name is Jay Morris and he had a sign reading “AMERICAN JOBS NOT WAR” and a sign reading “NO WAR NO WAY.”

4.  We saw two police officers nearby, one in uniform and one in plainclothes. As soon as they saw us they pulled out their cell phones and radios and stared at us while talking on them. Approximately 2-3 minutes later a Little Rock police officer named Brian Haley walked up to us. He said to me, “Ma’am, I am going to have to ask you to follow me to a place that has already been designated for you.” We did not want any trouble so we followed him three or four blocks down the street until we were directly in front of the Old Statehouse. Officer Haley told us that was the area that had been designated for us as a “safe zone,” I believe were the words he used. We were joined there a few moments later by two other people, Terry Treadaway and Arshad Hasan, who is Field Organizer for Clear the Air.

5.  No one had applied for a permit on our behalf and we had not requested any designated place to demonstrate. We wanted to be near the Statehouse Convention Center where the political fundraising event was being held, so that the President and others attending the event could see us.

6.  At about 10:30 a.m., a group of about 8 or 9 Republican college students appeared. They had signs that said “College Republicans,” and some had signs that were like an American Flag cut into the shape of the letter “W.” (It was later reported on the TV news that they were students from a college in Conway, Arkansas, and that they had been summoned to Little Rock to demonstrate in support of the President when the Bush campaign learned that a group of Wesley Clark supporters was planning to demonstrate near the { p.3 } President’s fundraiser.) This Republican group walked right past our group, continuing toward the Statehouse Convention Center. As they passed us, one of them taunted us, saying “You’re not very bright, the protest is down here” — indicating the direction of the Convention Center. They stopped approximately 50 or 100 feet past us, and one of them put down his sign and pulled out a cell phone to make a call.

7.  After a while, these college Republicans continued walking towards the Convention Center, still holding their signs. Terry Treadaway began walking behind them with his sign. Jay Morris and I took our signs and followed Terry Treadaway. We were near the Peabody Hotel when a police officer in uniform held out his hand and stopped Terry Treadaway, directing him back toward the “safe zone” while allowing the Republicans to continue walking. Like Terry Treadaway, we were turned back and directed back to our “designated area” or “safe zone.” But the Republican group was allowed to walk all the way to the Convention Center holding their “W” signs and was allowed to stand on the sidewalk right in front of it. It was approximately 10:45 or 11 a.m. when the Republicans arrived in front of the Convention Center and were allowed to stand there. I can’t be precise about the time as I was not wearing my watch. At about that time a reporter mentioned to us that President Bush was expected to arrive at 11:30 a.m. to noon. My understanding is that President Bush did arrive at about 11:50 a.m., although we were so far away that we could not even see his motorcade arrive or depart. Of course that meant he also could not see us.

8.  I was able to see a TV station’s news van set up near the Convention Center steps, where they would have been able to film the Republican group but not us. At one point, I saw a TV anchorwoman walk across the street and { p.4 } interview the Republican group. As far as the anchorwoman was concerned, we might as well not have been there at all.

9.  Soon after the Republican group was allowed to walk to the front of the Convention Center and stand their with their signs, a group of approximately 50 supporters of Wesley Clark for President appeared on the scene. They were instructed to stand near us.

10.  While no one from the Secret Service ever spoke directly to our group, Secret Service agents seemed to be all over the place. I can’t say for certain that they were Secret Service agents, but they were men wearing suits standing around speaking into cell phones or radios. When we were in our “safe zone” I could see three men in suits standing across the street from us and staring at us. One man in a suit was sitting in a car just beside us; as soon as the President left the scene, he was gone. Another man in a suit kept crossing the street from side to side, obviously keeping an eye our small group.

11.  During the time that we were kept in our “safe zone,” I could see a number of bystanders who were not carrying signs standing across the street near the Convention Center, much closer to where we wanted to be. The police apparently did not tell them to leave, because they were there for a long time.

I declare under penalty of perjury {28 U.S.C.§ 1746} that the foregoing is true and correct.

Executed this _______ day of November, 2003.

______________________

Exhibit 6

{Case caption, omitted}

Declaration of Terry Treadaway

Terry Treadaway deposes and says:

1.  I am an adult resident of the State of Arkansas and I make this declaration based upon my own knowledge and observations.

2.  I came to downtown Little Rock on November 10, 2003, in order to express my views to President Bush and the other people who attended his political fundraiser at the Statehouse Convention Center. I am married, 59 years old and retired. I take care of my two elderly parents. I served in the U.S. Army during the Vietnam War and have an Honorable Discharge from the Service. I have never protested before. November 10, 2003, was the first protest or demonstration that I took part in.

3.  I arrived near the Convention Center at about 9:45 a.m. I had with me five different poster-board signs that I had made. The one that I held the most and which I would say best expressed the reason I was there that day was the one that looked like this: $$$ for Bush, 0 for AR, 0 for U.S. { p.2 } I wanted to convey this message to President Bush and to the people who were giving him $2,000 apiece, as well as to the news media that I assumed would be near the Convention Center.

4.  As I drove west on Markham Street past the Convention Center and the Peabody Hotel I saw Lisa Burks and two other demonstrators on the sidewalk on my right, on the north side of the street, in front of the Old Statehouse. I pulled over and parked and went over to meet them. When I asked them what they were doing down there, so far away from the Convention Center, they told me that this was were the police had directed them to go to.

5.  At approximately 10:30 a group of Republicans walked by us on the same side of the street. Two of them were carrying large signs that said “Make a Difference — College Republicans,” and some were carrying red, white and blue signs in the shape of the letter “W.” There were about 8 of them and they appeared by their age and dress to be students. They passed us and continued walking toward the Convention Center. They stopped near the driveway of the Peabody Hotel where they were met by some elderly gentlemen. They all stood in a group and spoke for a while. Then they resumed walking as a group toward the Convention Center.

6.  I began to follow them. I still had my sign but it hung loosely from my hand at my side. I did not hold the sign up. All of a sudden a police officer stepped up to me from the street and stopped me in front of the Peabody Hotel with the words “your area is back that way.” I told him I wanted to see where they (the group of Republicans) were going, because by this time they were very near the entrance to the Convention Center. He said to me “they’re going to their designated area.” So I turned around and went back. Lisa Burks and Jay Morris had been following behind me and I told { p.3 } them we had to go back. I observed that there were several vehicles parked by the Peabody that did not seem to cause anyone a security concern, although they were closer to the Convention Center than we were allowed to be.

7.  I could see that the Republican group was allowed to walk right up the sidewalk to a place in front of the Convention Center and stand there with their signs.

8.  After approximately 15 or 20 minutes the Republican group came back down Markham Street towards us but now they were on the other side of the street. They stopped at a place closer to the Convention Center than we were. Shortly thereafter a group of Wesley Clark for President supporters arrived. They walked down the sidewalk on the same side as the Convention Center and stopped near the Peabody at the same spot the young Republicans had meet the other gentlemen. The young Republicans (who were now on the south side of Markham) then got into a shouting match with the Clark supporters. Since the Clark people had been allowed to stand closer to the Convention Center than our group, I walked up and I joined the Clark group and stayed with them for a while.

9.  At one point. I put my sign down and got my camera. I walked past the Republican group toward the Convention Center and took some photographs. I was not stopped this time. No police officer approached to redirect me back to my designated area. I returned to my car and put the camera away and took up my sign again.

10.  After a while the Republican group left. I heard some of them saying they had to return to class. At about 11:40 the Clark group folded up their banners and left. We remained until about noon. We never even saw the President’s motorcade, which would have arrived from the opposite direction. { p.4 } Therefore I know the President never saw us. The TV camera crew from Channel 4 News that was near the Convention Center never saw us either.

11.  Aside from my group, the Clark group and the Republican group, there were lots of spectators on both sides of Markham Street near the Convention Center. I would estimate that at least 20 bystanders were on the sidewalks closer to the Convention Center than we were allowed to be.

12.  In addititon to local police, there were a number of men in suits standing around the area and sitting in cars. They did not appear to be spectators but people on duty. They were watching us and the other groups, and talking into cell phones or radios. I don’t know for sure if they were Secret Service agents, but that was my impression.

I declare under penalty of perjury {28 U.S.C.§ 1746} that the foregoing is true and correct. Executed this _______ day of November, 2003.

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Nov. 29 2003. Updated Jan. 1 2004

http://homepage.ntlworld.com/jksonc/docs/acorn-edpa-d20.html