SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division _________________________________________ ) UNITED STUDENTS AGAINST ) SWEATSHOPS, ) ) C.A. No.

13-5376 Plaintiff, ) Cordero, J. ) Next event: ISC: 11/22/2013 v. ) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) _________________________________________) MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Plaintiff United Students Against Sweatshops (USAS) has sued the District of Columbia (District) and Metropolitan Police Department (MPD) Officer Nicole Rizzi, contending that MPD conducted a criminal investigation of the group and/or its members without complying with the procedural requirements of the First Amendment Assemblies Act (FAAA), D.C. Code 5-333.01 et seq. Contemporaneous with the filing of the Complaint, Plaintiff moved the Court for a preliminary injunction prohibiting MPD from investigating Plaintiff pending completion of trial on the merits and requiring MPD to conduct training on the FAAA. See Pl.s Mot. at 1. As this Memorandum demonstrates, Plaintiff has offered no factual or legal support for the extraordinary relief it seeks, and its Motion for Preliminary Injunction must be denied. ARGUMENT A preliminary injunction is an extraordinary remedy, District of Columbia v. Sierra Club, 670 A.2d 354, 361 (D.C. 1996), not to be granted lightly, In re Antioch University, 418 A.2d 105, 109 (D.C. 1980). As such, on a motion for preliminary injunction, the movant bears

the burden of clearly demonstrating each of the following: (1) that there is a substantial likelihood that he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him from the denial of the injunction than will result to the defendant from its grant; and (4) that the public interest will not be disserved by the issuance of the requested order. Sierra Club, 670 A.2d at 361. As this memorandum demonstrates, Plaintiff has failed as to each inquiry. I. PLAINTIFF CANNOT PREVAIL ON THE MERITS OF ITS CLAIM; AT ALL RELEVANT TIMES, MPD OPERATED IN COMPLIANCE WITH SECTION II OF THE FAAA Plaintiff purports to bring this lawsuit directly under Section II of the FAAA, which sets forth standards governing MPD investigations that relate to First Amendment Activities. See D.C. Code 5-333.03. 1 The statute and corresponding regulations generally permit two levels (or types) of investigatory activities: preliminary inquiries, id. 5-333.06, and investigations, id. 5-333.05. See also 24 DCMR 2703-05. Only the latter is relevant here: At no time relevant to the allegations in the Complaint did MPD conduct or seek authorization for a preliminary inquiry into Plaintiff or its members. Decl. of Thomas Wilkins, Executive Director, Intelligence Fusion Division (Exhibit 1) at 5. Thus, to prevail on the merits of its claim Plaintiff must ultimately prove that MPD initiated an investigation relating to Plaintiffs First Amendment activities that ran afoul of the procedural requirements set forth in Section II, specifically, D.C. Code 5-333.05 (governing authorization of investigations) and .07 (governing investigatory techniques employed). For the reasons set forth herein, Plaintiff can

D.C. Code 5-333.02(1) defines First Amendment Activities as constitutionally protected speech or association, or conduct related to freedom of speech, free exercise of religion, freedom of the press, the right to assemble, and the right to petition the government.

make no such showing; at all relevant times, MPD operated in compliance with the relevant portions of the Act. A. Standard Of Review Applicable to Plaintiffs Claim As noted by the court in Baumann v. District of Columbia, the FAAA does not provide an explicit right of action for persons injured by a violation of the statute. 744 F. Supp. 2d 216, 226 (D.D.C. 2010) (Kollar-Kotelly, J.). Rather, the defined purpose of the FAA is to establish the responsibilities of and procedures for the MPD relating to the investigations and preliminary inquiries, including criminal intelligence investigations and inquiries, that may affect activities protected by the First Amendment. D.C. Code 5-333.03. After examining the FAAAs legislative history, the Baumann court concluded that the [FAAA] is merely intended to establish procedures for MPD to follow when conducting investigations rather than to establish new substantive rights to be enforced in the courts. Baumann, 744 F. Supp. 2d at 227. Indeed, the court there found that the D.C. Council clearly chose not to create a private right of action with the FAAA. Id. As a result, Plaintiff can only seek limited injunctive relief under this Courts general equitable powers to require the Districts compliance with the FAAA. See id. Thus, the Courts inquiry in examining Plaintiffs claim for equitable relief under the standard for a preliminary injunction is limited solely to whether the District has failed to comply with the law, and not to matters committed to the agencys discretion which are outside the purview of judicial review. Id. at 227-28. B. Relevant Statutory And Regulatory Requirements Under Section II of the FAAA, an investigation that involves the First Amendment activities of persons, groups, or organizations is warranted if there is reasonable suspicion to

believe that the persons, groups, or organizations [to be investigated] are planning or engaged in criminal activity, and the First Amendment activities are relevant to the criminal investigation. D.C. Code 5-333.05(a); accord 24 DCMR 2705.1 ([a] full investigation may be initiated when there is reasonable suspicion to believe that the persons, groups, or organizations to be investigated are planning or engaged in criminal activity that would threaten public safety or the security of the city . . . [and] may be conducted to prevent, solve or prosecute such criminal activity). 2 Authorization for an investigation pursuant to Section II must be requested and approved in writing. See id. 5-333.05(b)-(c). The request must set forth three basic details: the subject of the proposed investigation, if known; the facts and circumstances underlying reasonable suspicion of criminal activity; and the relevance of the First Amendment activities to the investigation. Id. 5-333.05(c)(1)-(3). The Executive Director of the Intelligence Fusion Division is the MPD command official authorized to approve such requests. See id. 5333.05(b); 24 DCMR 2705.5. Since November 28, 2012, the Executive Director of the Intelligence Fusion Division is also authorized to approve the use of undercover officers, among other investigatory techniques, in investigations under Section II, see November 28, 2012 Memorandum from Chief of Police Cathy L. Lanier to Thomas Wilkins, Executive Director, Intelligence Fusion Division (Exhibit 2). Authorization for the use of undercover officers must be made in writing. See D.C. Code 5-333.05(e) & 5-333.07(e); 24 DCMR 2705.4. While the statute and corresponding

regulations indeed require MPD to employ the investigatory techniques that minimize interference with First Amendment activities without impeding the investigation, see D.C. Code

D.C. Code 5-333.02(11) defines reasonable suspicion, in relevant part, as a belief based on articulable facts and circumstances indicating a past, current, or impending violation of law. The same provision further explains that [t]he reasonable suspicion standard is lower than the standard of probable cause. Id. The corresponding regulations set forth substantially the same definition. See 24 DCMR 2705.2.

 5-333.05(b) (consider least intrusive technique); 24 DCMR 2705.4 (reasonable precautions to minimize interference without impairing the success of the investigation), the decision of which technique to employ remains at the sole discretion of the Chief of Police and/or the Executive Director, as her designee, see D.C. Code 5-333.05(e) & 5-333.07(e); 24 DCMR 2705.4. II. Plaintiff Cannot Meet the Standard for a Preliminary Injunction A. Plaintiff Cannot Show Likelihood of Success on the Merits as MPD Complied With All Applicable Statutory And Regulatory Requirements An investigation under Section II of the FAAA will comply with all applicable procedural requirements so long as: (1) the investigation is requested in writing; (2) the request sets forth the subject of the proposed investigation, the facts and circumstances underlying reasonable suspicion of criminal activity, and the relevance of the First Amendment activities to the investigation; (3) the Executive Director of the Intelligence Fusion Division approves the request, in writing; and (4) if undercover officers are among the investigatory techniques to be employed, the Chief or the Executive Director, as her designee, approves their use, in writing. Each of these requirements were met here; Plaintiff thus cannot succeed on the merits of its claim. On May 1, 2013, several uniformed MPD officers were present during a protest at the Gap clothing retail store at 1120 Connecticut Avenue, N.W. Ex. 1 at 6-7. During the protest, a uniformed officer was punched and body-slammed by at least three individuals within the group of protestors, who then fled the scene. Id. at 7. The next day, MPD intelligence officers viewed an open source video on an internet website that captured the events of the demonstration, including the assaults on the officers present. Id. Based on the facts and circumstances depicted in the video, a memorandum 5

requesting authorization for an investigation into the assaults was prepared and submitted to the Executive Director of the Intelligence Fusion Division. Id. at 8. The memorandum

summarized the subjects of the proposed investigation, the facts and circumstances underlying reasonable suspicion of criminal activity, and the relevance of the First Amendment activities to the investigation, as required by D.C. Code 5-333.05(c)(1)-(3). Id. at 9. The Executive Director of the Intelligence Fusion Division approved the request, in writing, the same day. Id. at 10. At that time, the use of undercover officers in connection with the investigation was

neither requested nor authorized. Id. Moreover, the requested authorization was limited in nature to permit MPD officers to investigate solely the assaults already committed; thus, the investigation, by its nature at that time, employed minimization procedures as required by D.C. Code 5-333.07. Id. at 9. On May 10, 2013, MPD intelligence officers reviewed open source information indicating that members of the group responsible for the May 1, 2013 protest at the Gap clothing retail store at 1120 Connecticut Avenue, N.W., were planning to conduct similar demonstrations. Id. at 12. Due primarily to the assaults on uniformed officers that occurred previously, and the corresponding concern of further violence, a memorandum requesting the use of undercover officers to monitor the forthcoming demonstrations was prepared and submitted to the Executive Director of the Intelligence Fusion Division. Id. at 11-13. The memorandum again

summarized the subject of the proposed investigation, the facts and circumstances underlying reasonable suspicion of criminal activity, and the relevance of the First Amendment activities to the investigation, as required by D.C. Code 5-333.05(c)(1)-(3). Id. at 12. MPD also determined that the proposed use of an undercover officer was the least intrusive means to conduct the investigation under the facts and circumstances presented. Id. at 14. The

Executive Director of the Intelligence Fusion Division approved the request to use undercover officers in connection with the ongoing investigation, in writing, the same day. Id. at 15. Although the statute and regulations require that investigations last no more than 120 days, see D.C. Code 5-333.05(d); 24 DCMR 2705.6, it is the practice of the Intelligence Division to review investigations every sixty (60) days. Ex. 1 at 16. Thus, on June 27, 2013, the ongoing investigation was reviewed and, based upon the facts and circumstances that demonstrated reasonable suspicion that criminal activity had occurred after a demonstration on or about May 16, 2013, authorization to continue the investigation was sought and approved, in writing. Id. at 17-18. As of the date hereof, the investigation remains open and ongoing. Id. 19. Thus, at all times: (1) the requests for authorization for the investigation were made by members of MPD to the Executive Director of the Intelligence Division, as required by D.C. Code 5-333.05(c) and 24 DCMR 2705, Ex. 1 5-6, 11; (2) the requests identified the subject of the proposed investigation, they stated the facts and circumstances that create a reasonable suspicion of criminal activity, and they identified the relevance of the First Amendment activities to the investigation pursuant to D.C. Code 5-333.05(c), Ex. 1 9, 13; (3) minimization procedures were considered in light of the facts and circumstances underlying the investigation, D.C. Code 5-333.07, Ex. 1 9, 14; (4) written authorization for the investigations was given by the Executive Director based on the showing of reasonable suspicion for the investigations, D.C. Code 5-333.05(d), Ex. 1 10, 15, 18; and (5) specific authorization for the use of undercover officers was provided in writing by the Executive Director, as required by D.C. Code 5-333.07 and 24 DCMR 2705.5. Ex. 1 12, 14.3

Because this investigation is ongoing, and because the Courts review is limited to compliance with the FAAA procedures and does not include a de novo review of the evidence supporting the reasonable suspicion that justified

Plaintiff cannot succeed on the merits of its claim, and Plaintiffs Motion for Preliminary Injunction must be denied. B. Plaintiff Has Not Suffered Any Cognizable Harm Whatsoever The most important inquiry for the granting of an injunction is whether the movant will suffer irreparable injury. In re Antioch Univ., 418 A.2d at 109 (emphasis in original). To qualify, the alleged injury must be both certain and great as well as likely to occur. See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); accord Wieck v. Sterenbuch, 350 A.2d 384, 388 (D.C. 1976) ([a]n injunction should not be issued unless the threat of injury is imminent and well-founded). According to Plaintiff, the irreparable harm that justifies the request for emergency injunctive relief in this case is a chilling of the Free Speech and Assembly rights of Plaintiffs members as a result of the presence of undercover police officer(s) at public demonstrations. See Mot. at 16. Plaintiffs asserted chill, however, is completely inadequate to satisfy the irreparable harm inquiry. 4

the opening of this investigation, the specific details underlying the reasonable suspicion to open and continue the investigation have not been publicly disclosed and instead MPD has provided a declaration attesting to the fact that the procedures have been followed. See Ex. 1. Should the Court determine that its review of FAAA compliance necessitates additional facts, the District will provide an in camera and ex parte review of the investigative file, or additional ex parte and in camera testimony. Initially, Plaintiff invites the Court to presume the existence of irreparable harm because, as Plaintiff claims, the injury suffered . . . is the exact type of injury the D.C. Council sought to prevent when it passed the [FAAA]. Pl.s Mot. at 15. Defendants are aware of no authority that is binding on this Court that supports that proposition, and Plaintiff cites none. Nor do Plaintiffs overtly misleading citations to cases from other jurisdiction create a rule applicable to this case. The dicta Plaintiff identifies in EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984) had no direct bearing on the courts finding of irreparable harm, nor did the Chrysler Corp. court suggest that it would presume that the plaintiff was injured; the rule in Star Fuel Marts, LLC v. Sam's E., Inc., 362 F.3d 639, 652 (10th Cir. 2004), on which Plaintiff relies expressly depended upon the fact that the statute underlying the plaintiffs cause of action provided for injunctive relief, which is not the case here, see D.C. Code 5-333.01, et seq. (creating no express right of action, let alone a cause of action for injunctive relief); in Robinson v. Power Pizza, the court presumed the existence of irreparable harm because the defendant conceded that the type of discrimination was irreparable, 993 F. Supp. 1462, 1466 (M.D. Fla. 1998) (The Court need not consider the second prong of the preliminary injunction test: Defendant concedes that discrimination of the alleged type constitutes irreparable harm). Plaintiffs effort to mislead the Court thus fails outright.
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As a practical matter, the only actual evidence of a chilling effect proffered by Plaintiff is the testimony of International Campaign Coordinator, Garrett Strain, which provides, in relevant part: 13. I have personally become much more cautious with people who express an interest in joining our actions, if I do not know them already. 14. It is my belief that if our supporters find out that we have been infilitrated by the police, many will believe that we have been doing something illegal, even though we have not in fact been doing anything illegal. Supporters who believe that we are doing something improper, as well as others who dont wish to be surveilled, will not be willing to attend our protests and this will diminish our voice. Pl.s Mot. Ex. 11, USAS-0165-66. Mr. Strains first observation demonstrates little more than inconvenience to him personally, rather than any direct harm to Plaintiffs organization interests. See Zirkle v. District of Columbia, 830 A.2d 1250, 1257 (D.C. 2003) (inconvenience [is] not irreparable harm). And his second observation (regarding Plaintiffs supporters) is totally speculative and does not show that any of Plaintiffs members rights were, or would be, in fact chilled. See Natl Student Assn v. Hershey, 412 F.2d 1103, 1113-1114 (D.C. Cir. 1969) (we are not persuaded that every plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby established a case or controversy); accord Zirkle, 830 A.2d at 1258 (citing Hershey, supra). Plaintiff has not demonstrated irreparable injury for that reason alone. See Wisconsin Gas, 758 F.2d at 674 (something merely feared as liable to occur does not constitute irreparable harm); Clark v. Library of Congress, 750 F.2d 89, 94 n.5 (D.C. Cir. 1984) (potential injury is too speculative . . . [i]njunctions will not issue to prevent injuries neither extant nor presently threatened, but merely feared). 5

Plaintiff also appears to allege an injury to its own advocacy interests. See Pl.s Mot. at 16 (USAS has demonstrated its intent to organize demonstrations and to advocate . . . [and if] MPD is allowed to chill USASs

Without a specific showing of actual harm, Plaintiff cannot demonstrate that any perceived or theoretical harm is irreparable. See Monument Realty LLC v. Wash. Metro. Area Transit Auth., 540 F. Supp. 2d 66, 74 (D.D.C. 2008) (harm must be certain and great, actual and not theoretical). And, neither Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009), nor Baumann v. District of Columbia, 744 F. Supp. 2d 216 (D.D.C. 2010), the cases on which Plaintiff principally relies, supports a different result. Plaintiff cites Mills for the

proposition that ongoing violations of constitutional rights often satisfy the irreparable injury requirement. See Pl.s Mot. at 15-16. That much is true. See Mills, 571 F.3d at 1312. But Plaintiff has not even alleged (let alone proven) any past or future violation of the First Amendment or any other constitutional provision. Nor is there any basis for the Court to conclude that a constitutional violation occurred or will occur in the future. See Clark v. Library of Congress, 750 F.2d 89, 93 (D.C. Cir. 1984) (chill of First Amendment rights justified by lawful, good faith criminal investigation); see also supra (discussing investigation at issue). That fact alone clearly distinguishes Mills from this case. 6 Baumann v. District of Columbia is likewise inapposite for several reasons. As Plaintiff correctly notes, in Baumann, Judge Kollar-Kotelly opined that the presence of a uniformed police officer at a public speaking engagement would chill a person of ordinary firmness . . . from continuing to [publicly] criticize [the police department]. 744 F. Supp. 2d at 223. Even so, the plaintiffs motion for a preliminary injunction was denied, based in part upon a finding
organizing and speech activities . . . the group could lose this chance to effectuate real change). That harm, which is unsupported by any evidence (as opposed to allegation or argument), is even more attenuated than the purported chill to the rights of Plaintiffs members. In Mills. the Court of Appeals for the District of Columbia Circuit found an irreparable injury only after concluding that the plaintiffs constitutional rights were in fact being violated by the government program at issue. 571 F.3d at 1312 ([a]s our discussion of the likelihood of success has demonstrated . . . [i]t is apparent that appellants constitutional rights are violated . . . and the police chief has expressed her intent to continue to use the [presumptively unconstitutional] program until a judge stops her). As explained in the text accompanying this note, no such finding has been or could be made on the record before the Court.
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that the allegations of future First Amendment harm were too speculative to justify the relief. See 655 F. Supp. 2d 1, 8 (D.D.C. 2009). That is precisely the flaw in Plaintiffs argument here. Plaintiff offers only speculation (without supporting evidence) that: (1) Plaintiffs members will engage in future demonstrations; (2) MPD will continue to use undercover police officers to monitor those activities; (3) that some member of the group will be chilled by the presence of the undercover officers; and (4) there will be a corresponding effect on Plaintiffs ability to communicate its message. See discussion supra at 8-9. Moreover, the chill of a uniformed police officer that the Baumann Court found could occur would not and did not occur with an undercover officer. Here, members of the Plaintiffs organization were not chilled in their speech as they did not know an undercover officer was present. And any future chill based on a concern that a undercover officer is present is purely speculative, and unreasonable considering that the FAAA permits the use of such undercover officers when the requirements of the Act are met. For the reasons set forth above, Plaintiffs failure to demonstrate any chill whether past or future beyond a highly speculative level is insufficient to satisfy the irreparable harm inquiry; Plaintiffs Motion must be denied. See CityFed Fin. Corp. v. Office of Thrift Supervision, United States Dep't of Treasury, 58 F.3d 738, 747 (D.C. Cir. 1995) (finding that movants failure to demonstrate irreparable harm was sufficient grounds, by itself, to deny requested injunctive relief). C. The Balance of the Equities Supports Denial of Plaintiffs Motion Plaintiff asserts that the balance of equities favors issuing the requested preliminary injunction because its ability to organize protests, recruit members, and persuade the public would be impaired by denial of the injunction, while the governments interest has been diminished once Plaintiff disclosed the identity of the undercover officer. Pl.s Mot. at 17-18.

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First, as already demonstrated, the chill that Plaintiff alleges is speculative at best. See supra at 8-11. Further, Plaintiffs claim that the District no longer has an interest in its investigation is incorrect. As established by Executive Director Wilkins, the investigation at issue remains open and ongoing. Ex. 1 19. Indeed, Plaintiffs assertion that the District could not continue its investigation actually undermines its request for preliminary injunctive relief: if there was no ability for the District to continue the investigation, there could be no credible threat of irreparable harm. Either way, Plaintiff fails to demonstrate that the balance of equities tips in favor of issuing a preliminary injunction, and thus its motion must fail. See, e.g., Black Fire Fighters Assn of Dallas v. City of Dallas, 905 F.2d 63, 66 (5th Cir, 1990) (Because plaintiffs bid for injunctive relief fails this third test, it therefore fails altogether.). D. The Public Interest Strongly Disfavors Issuance of the Relief Plaintiff Seeks Plaintiff makes essentially two arguments as to how the public interest might be served by the issuance of the injunctive relief it seeks: (1) that [t]he public has a compelling interest in an unfettered political debate, Pl.s Mot. at 18; and (2) there can be no interest in enforcing laws illegally, id. Both of Plaintiffs assertions are true as a matter of principle yet fail as applied to this case. The party requesting preliminary equitable relief bears the burden of clearly demonstrating (as opposed to merely alleging) that each element of the familiar fourpart inquiry is met. Sierra Club, 670 A.2d at 361. Plaintiff has offered this Court no evidence whatsoever that suggests either that the requested injunction will further First Amendment values or prevent the enforcement of Section II of the FAAA in an illegal manner. At least as to the latter proposition, the evidence now before the Court absolutely demonstrates otherwise. See discussion supra at 5-8.

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But even so, on balance, the public interest would strongly disfavor issuance of the preliminary relief Plaintiff seeks. There can be no question that the public has a unique interest in seeing that District officials retain their rightful independence in pursuing legitimate ends of government, including law enforcement objectives. Quackenbush v. Allstate, Ins. Co., 517 U.S. 706, 724 (1996) (abstention context; recognizing the public interest . . . [in] the rightful independence of state governments in carrying out their domestic policy); see also Horne v. Flores, 129 S. Ct. 2579, 2593-96 (2009) (discussing, inter alia, the important interest in returning responsibility over state obligations to state officials once compliance with federal law has been achieved); Handschu v. Special Services Division, 349 F. Supp. 766, 769 (S.D.N.Y. 1972) (The use of secret informers of undercover agents is a legitimate and proper practice of law enforcement and justified in the public interest.). That principle carries special force where, as here, a private party has requested a judicial remedy, not expressly authorized by legislative enactment, which threatens to interfere with a core activity of a coordinate branch of government. See D.C. Office of Human Rights v. D.C. Dep't of Corr., 40 A.3d 917, 923 (D.C. 2012) (separation of powers concerns warrant judicial deference to agency action); McNair Builders, Inc. v. Taylor, 3 A.3d 1132, 1138 (D.C. 2010) (decision based, in part, on substantial public interests enumerated in Will v. Hallock, 546 U.S. 345, 352 (U.S. 2006), including honoring the separation of powers and preserving the efficiencies of government and the initiatives of its officials). Under the circumstances,

Plaintiff essentially requests that the Court wield a disfavored judicial mechanism to stymie law enforcement activities that are consistent with all applicable legal requirements. See

discussion supra. The public interest disfavors that result; Plaintiffs request must be denied. 7

These arguments apply equally to Plaintiffs claim for preliminary injunction against Officer Rizzi. Here, Plaintiff cannot prevail on the merits of an FAAA claim against Officer Rizzi as Plaintiff cannot succeed on the merits:

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III. Conclusion Accordingly, for the reasons set forth above, Plaintiffs motion for a preliminary injunction should be denied. Respectfully submitted, IRVIN B. NATHAN Attorney General for the District of Columbia ELLEN A. EFROS Deputy Attorney General Public Interest Division /s/ Grace Graham__________ Grace Graham [472878] Chief, Equity I Public Interest Division /s/ Shana L. Frost________________ SHANA L. FROST (458021) Assistant Attorney General 441 4th Street, NW Washington, DC 20001 (202) 724-6534 Fax: (202) 741-8934 shana.frost@dc.gov /s/ Matthew R. Blecher MATTHEW R. BLECHER (1012957) Assistant Attorney General Equity Section, Public Interest Division 441 Fourth Street, N.W., Suite 600S
Defendants have demonstrated complete compliance with all FAAA procedures. Moreover, as demonstrated by Executive Director Wilkins, Executive Director Wilkins is the individual at MPD who has the delegated authority to approve requests for investigations and preliminary inquiries; Officer Rizzi cannot issue such authorizations. Ex. 1 3. In any event, that Plaintiff tries and fails to demonstrate that Officer Rizzi has somehow violated the FAAA in the past is of no moment. Plaintiff asserts that Officer Rizzi was present at meetings at the Washington Peace Center (WPC) on December 8, 2008, and then again on September 17, 2009. From these two isolated instances, Plaintiff make the unsupported leap to conclude that Officer Rizzi must have been continuously engaged in undercover activities for more than nine months merely because she appeared at the WPC on those two occasions. This reasoning lacks any sense if the undercover activity at the WPC were ongoing for 283 days, surely there would be evidence that Officer Rizzi appeared there more often than the first and last days of the 283 day period. The lack of any other appearance by Officer Rizzi instead demonstrates that there was more than one investigation that occurred. In any event, the fact that Plaintiff cannot succeed on the merits of its claim against Officer Rizzi or the District, or demonstrate any irreparable harm caused by Officer Rizzi or the District, dictates denial of Plaintiffs motion.

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Washington, D.C. 20001 Phone: (202) 442-9774 Fax: (202) 730-0586 Email: matthew.blecher@dc.gov CERTIFICATE OF SERVICE I hereby certify that on this 21st day of August, 2013, I served the foregoing Memorandum in Opposition on the Honorable Laura Cordero and counsel for Plaintiff via the Courts CaseFileXpress system.

/s/ Shana L. Frost________________ SHANA L. FROST Assistant Attorney General

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division _________________________________________ ) UNITED STUDENTS AGAINST ) SWEATSHOPS, ) ) C.A. No. 13-5376 Plaintiff, ) Cordero, J. ) v. ) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) _________________________________________) ORDER Before the Court is the Plaintiffs motion for a preliminary injunction. Upon consideration of Plaintiffs motion, and the memorandum in opposition submitted by the Defendants, it is this ___ day of _____________, 2013: ORDERED that Plaintiffs motion for a preliminary injunction be, and hereby is, DENIED.

___________________________ Hon. Laura Cordero Associate Judge

Copies served on counsel of record via CaseFileXpress