Defendants Reply Memorandum

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

DEFENDANTS' REPLY MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO DISMISS ALL CLAIMS
AGAINST DEFENDANTS RICHARD ROBBINS, STEPHEN
O'NEILL AND ANDREW KENESS AND ALL
CLAIMS FOR MONEY DAMAGES, AND IN OPPOSITION TO
PLAINTIFFS' MOTION TO STRIKE AND FOR SANCTIONS

The plaintiffs, three perennial demonstrators in Lafayette Park, have brought suit against the United States, the National Park Service, the United States Park Police and three individual federal employees. The gravamen of plaintiffs' complaint is that certain Park Police officers are arbitrarily and "without probable cause" enforcing against them certain of the regulations governing demonstrators in Lafayette Park -- particularly the regulations applicable to signs, structures and camping. The defendants have moved to dismiss the plaintiffs' claims against the individual defendants [l] for several independent reasons, including failure to meet the heightened pleading standard imposed upon Bivens plaintiffs and qualified immunity.


[1 See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).]

1

In their numerous filings,[2] the plaintiffs have failed to overcome the grounds for dismissing the claims against the individuals. Accordingly, the Bivens claims against the three individual defendants should be dismissed.

A. Plaintiffs' Claims Against All of the Defendants
In Their Individual Capacities Must Be Dismissed.

Plaintiffs do not dispute that, for a federal official properly to be sued individually for actions taken by him in an official capacity, the complaint must allege a specific deprivation of plaintiff's constitutional rights by each defendant, with specific factual allegations as to each alleged deprivation. As described in the defendants' opening memorandum, plaintiffs here patently fail to meet this standard. Each of the


[2 Counsel for the defendants has received the following filings (not including motions for enlargement of time) subsequent to the filing of the pending motion to dismiss: "Plaintiffs' Motion to Reconsider Denial of Plaintiffs' Application for a TRO, or Alternatively to Dismiss the Complaint as Frivolous" (filed January 11, 1995); "Motion for Rule 11 Sanctions or Other Disciplinary Action or, Alternatively, to Dismiss this Action as Frivolous" (filed January 24, 1995); Joint Motion by Plaintiffs Concepcion Picciotto and Ellen Thomas for Rule 11 Sanctions" (filed February 1, 1995); "Plaintiff Ellen Thomas' Opposition to Plaintiff William Thomas' Motion to Dismiss for Frivolity" (filed February 1, 1995); "Opposition by Plaintiff Concepcion Picciotto to Plaintiff William Thomas' Motion to Dismiss for Frivolity and to the Government's Motion to Dismiss" (filed February 1, 1995); "Plaintiff William Thomas' Motion to Withdraw His Motion to Dismiss for Frivolity" (filed February 6, 1995); "Plaintiffs' Motion for Reconsideration of the Court's February 1, 1995 Order" (filed February 6, 1995); and "Plaintiffs' Motion to Strike Randy Meyers' [sic] Letter of January 20, 1995 From the Record" (filed February 6, 1995); Plaintiffs' Third Motion for Rule 11 Sanctions (filed February 9, 1995).]

2

allegations against the three named defendants [3] are discussed below.

1. The Plaintiffs' Allegations Against Mr.
Robbins Must Be Dismissed.

a. The Plaintiffs Have Failed to Meet
the Heightened pleading Standard.

The plaintiffs' claims against Assistant Solicitor Robbins arise solely out of their allegation that Mr. Robbins failed quickly to respond to plaintiff William Thomas's letter regarding his signs. Plaintiff does not allege that Mr. Robbins had any direct role in the enforcement actions about which he complains. Nor does he explain how Mr. Robbins~ actions rise to the level of the violation of a constitutional right -- much less an intentional violation of a clearly established constitutional right.

Indeed, the response to Mr. Thomas's letter (attached hereto as Exhibit 1), explains in detail why Mr. Thomas's sign violates the applicable regulation, and explains how Mr. Thomas can come into compliance. Mr. Thomas's signs have not as yet been removed, nor has he been prohibited from conveying his message in Lafayette Park.


[3 Although plaintiff has also named "Officer X", it is plain that this individual is not before this Court, because he has neither been named nor served. In any event, as we noted in our opening memorandum, the factual allegations relating to "Officer X" are completely unrelated to the plaintiffs' claims of arbitrary enforcement of the applicable regulations against them. Plaintiffs allege nothing more than that "Officer X" was involved in the shooting of Marcelino Corniel. Amended Complaint, 24. In their numerous filings relating to the pending motion, the plaintiffs reinforce the fact that none of the allegations relating to "Officer X" involve any of the plaintiffs.]

3

Further, the plaintiffs' have failed to allege any facts that demonstrate Mr. Robbins intended to violate their constitutional rights. As our Court of Appeals has emphasized, "such intent must be pleaded with specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent." Siegert v. Gilley, 895 F.2d 797, 802 (D.C. Cir. 1990), aff'd on other grounds, 111 S.Ct. 1789 (1991); Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir. 1989), cert. denied, 110 S.Ct. 3301 (1990).

There is simply nothing in the plaintiffs' allegations relating to Mr. Robbins that carries plaintiffs' burden under the heightened pleading standard to demonstrate that Mr. Robbins intentionally violated plaintiffs' clearly established constitutional rights. Accordingly, the claims against Mr. Robbins should be dismissed for failure to state a claim.

b. Mr. Robbins Is Entitled to Qualified Immunity.

If the Court determines that the plaintiffs have failed to meet the heightened pleading standard, it need not reach the qualified immunity issue. In any event, in their numerous filings, plaintiffs have not overcome the defendants' showing that Mr. Robbins is entitled to qualified immunity. Indeed,,,plaintiffs do not even attempt to point to factual allegations,that would show that Mr. Robbins intentionally engaged in conduct,that resulted in the deprivation of plaintiffs' clearly established constitutional rights. Instead, plaintiffs continue to harp on the fact that Mr. Thomas complained to Mr. Robbins

4

that Park Police officers told Mr. Thomas that his signs did not comply with applicable regulations and "threatened" to enforce those regulations.

Mr. Myers' letter responding to Mr. Thomas (see Ex. 1), describes the investigation undertaken by Mr. Robbins' office and the result of that investigation -- i.e., that Mr. Thomas's signs do in fact violate the applicable regulations. Mr. Myers' letter goes on to explain why the signs violate the regulations, and advises Mr. Thomas as to how he can bring his signs into compliance. The plaintiffs' factual allegations relating to Mr. Robbins cannot by any stretch of the imagination amount to a showing that Mr. Robbins "knowingly violate[d]" the constitution. See Briggs v. Malley, 475 U.S. 335, 341 (1986). Accordingly, Mr. Robbins is entitled to qualified immunity from suit in his individual capacity, and plaintiffs' claims against him should be dismissed.

2. The Plaintiffs' Allegations Against
Officer Stephen O'Neill Must Be Dismissed.

a. The Plaintiffs Have Failed to Meet
the Heightened Pleading Standard.

The plaintiffs' allegations involving Officer O'Neill's actions toward them are as follows: First, Officer O'Neill arrested Mr. Thomas for disorderly conduct without probable cause, and Mr. Thomas was never prosecuted. (Amended Complaint, 99 3, 4.) Second, Officer O'Neill on various occasions informed Mr. Thomas that his two signs were structures and violated the applicable regulations; Officer O'Neill further informed Mr.

5

Thomas that if Mr. Thomas did not bring his signs into compliance, Officer O'Neill would take enforcement action. (Id. at 6, 7.) Third, Officer O'Neill informed Ms. Picciotto that the flags attached to her signs violated the applicable regulations and that if Ms. Picciotto did not bring her sign into compliance by removing the flags, Officer O'Neill would take enforcement action. (Id. at 11 - 18.) Fourth, Officer O'Neill informed Ms. Picciotto that the cooler at her demonstration site violated the applicable regulations and that if Ms, Picciotto did not bring her site into compliance by removing the cooler, Officer O'Neill would take enforcement action. (Id. at 19.) Finally, Officer O'Neill has "banged his stick" on Ms. Picciotto's signs and "told [her], 'No camping, when he had no reason to say that," (12/21/94 declaration of Concepcion Picciotto, 7), and has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, 5.)

As demonstrated in the defendants' opening memorandum, none of these allegations meets the heightened pleading standard. Each of these allegations is briefly addressed below.

Arrest. Based upon Mr. Thomas's own declaration describing his arrest, it appears that Officer O'Neill could reasonably have believed that he had probable cause to arrest Mr. Thomas for disorderly conduct. Assuming arguendo the truth of Mr. Thomas' allegations, Mr. Thomas called Officer O'Neill "dishonest or stupid," told Officer O'Neill he "had better things to do than

6

listen to him," and started to walk away from Officer O'Neill (12/21/94 declaration of William Thomas, at 6.) When Officer O'Neill questioned Mr. Thomas about the registration of a bicycle, Mr. Thomas refused to answer the question, instead twice telling Officer O'Neill "to climb a flagpole." Id. [4]

Even if there was some doubt as to whether Officer O'Neill could reasonably have believed that he had probable cause to arrest Mr. Thomas, there is nothing in the plaintiffs' factual allegations that detail "specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent." Siegert, 895 F,2d at 802; Whitacre, 890 F.2d at 1171. Thus, the plaintiffs' allegations relating to Mr. Thomas's false arrest claim fails to satisfy the heightened pleading standard.

Signs/Flags. As described in our opening memorandum, the enforcement actions taken and statements made by Officers O'Neill and Keness regarding the plaintiffs' signs and flags (assuming arguendo these allegations are true) do not come close to stating a constitutional violation. The regulations are admittedly constitutional. Under the regulations, the plaintiffs cannot, under the guise of "supports,n create a structure and evade the applicable regulations by calling it a sign. Mr. Myers' letter


[4 Officer O'Neill's Supplemental Criminal Incident Record (attached as Exhibit 2), describes the incident in more detail. Based upon the facts recorded in that report, it is plain that Officer O'Neill had probable cause to arrest Mr. Thomas for disorderly conduct. See, e.q., Gueory v. District of Columbia, 408 A.2d 967 (D.C. App. 1979).]

7

describes to Mr. Thomas precisely how he can bring his "signs" back into compliance with the regulations.

Likewise, the flag allegations do not demonstrate a constitutional violation. Plaintiffs offer two justifications in arguing that the flags attached to the signs do not violate the regulations. Neither of these contentions has merit. First, Mr. Thomas asserts that Judge Green found that the flags "had been seized without probable cause". Complaint, I 10. For this assertion, he relies upon Judge Green's Order of October 12, 1990, in the Huddle case. [5] Even a cursory reading of that Order completely undercuts plaintiffs' assertion. Consistent with the defendants' position in this case, the flags were seized in Huddle because having the flags affixed to signs made the signs larger than allowed under the regulation. See Huddle Order at 1. The flags were seized for evidence for a criminal prosecution; when there was a decision not to prosecute, the government offered to return the signs. Id. Judge Green's Order noted this course of events and then ordered that the flags be returned to the plaintiffs. Id.

Plaintiffs' other justification is that the flags were allowed pursuant to Ms. Picciotto's demonstration permit. This assertion simply ignores the terms of the permit itself, which specifically states that "[a]ll laws, rules and regulations applicable to the area covered by this permit remain in effect." See Exhibit 3 to Plaintiffs' original complaint, at p. 2. Thus,


[5 A copy of that Order is included as Exhibit 3. ]

8

even under the terms of the permit, plaintiffs were not allowed to exceed the sign size limitations by attaching the flags.[6] None of the plaintiffs' factual allegations relating to the flags and signs demonstrate a constitutional violation. Moreover, the plaintiffs' allegations fall far short of demonstrating an intentional violation. Thus, these claims should also be dismissed for failing to meet the heightened pleading standard.

Cooler. As the defendants have previously noted, the application of the storage regulations to a cooler simply does not implicate the First Amendment. In any event, this Court does not even need to decide whether coolers are or are not allowed under the regulations, It is enough that, on their face the regulations reasonably would allow the conclusion that a cooler violates 36 C.F.R. 7.96(g)(5)(x). Because the regulations prohibit "crates", "boxes and other enclosures" and "similar types of property," plaintiffs have failed with these allegations to meet the heightened pleading standard -- i.e., to plead facts showing an intentional violation of a clearly established constitutional right.

Camping. Camping is not allowed in Lafayette Park, and sleeping is an indicia of camping. Thus, it is perfectly appropriate for any Park Police officer to awaken an individual who appears to be using Lafayette Park for living accommodation


[6 As the defendants have previously pointed out, the plaintiffs are free to display the flags as long as they are hand-held.]

9

purposes (such as sleeping) and inform them that camping is not allowed. See 36 C.F.R. 7.96(i).

In their various filings, the plaintiffs focus extensively on their allegations regarding the application of the camping regulation to Mr. Corniel. These allegations, however, are irrelevant to this case: Mr. Corniel is not a plaintiff and the plaintiffs obviously have no standing to raise a claim relating to Mr, Corniel. As to the application of the camping regulation to them, the plaintiffs' declarations again fall far short of demonstrating an intentional violation of a clearly established constitutional right. Basically, both Ms. Thomas and Ms. Concepcion state in their declarations that Officer O'Neill has "banged his stick" on Ms. Picciotto's signs and "told [her], 'No camping,' when he had no reason to say that," (12/21/94 declaration of Concepcion Picciotto, 7), and has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, 5.) These bare-boned allegations simply do not state facts sufficient to find an intentional violation of a clearly established constitutional right.

b. Officer O'Neill Is Entitled to Qualified Immunity.

As the Supreme Court made clear in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), government officials are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See also Mitchell

10

v. Forsyth, 472 U.S. 511, 526 (1985) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). Because the plaintiffs' allegations relating to Officer O'Neill do not demonstrate that his application of the regulations to them violate clearly established constitutional rights, Officer O'Neill is entitled to qualified immunity and the claims against him in his individual capacity must be dismissed.

3. The Plaintiffs' Allegations Against
Officer Andrew Keness Must Be Dismissed.

a. The Plaintiffs Have Failed to Meet
the Heightened Pleading Standard.

The plaintiffs' allegations involving Officer Keness's actions toward them are as follows: First, Officer Keness on various occasions informed Mr. Thomas that his two signs were structures and violated the applicable regulations; Officer Keness further informed Mr. Thomas that if Mr. Thomas did not bring his signs into compliance, Officer Keness would take enforcement action. (Amended Complaint at 6, 7.) Second, Officer Keness informed Ms. Picciotto that the flags attached to her signs violated the applicable regulations and that if Ms. Picciotto did not bring her sign into compliance by removing the flags, Officer Keness would take enforcement action. (Id. at 11-18.) Third, Officer O'Neill informed Ms. Picciotto that the cooler at her demonstration site violated the applicable regulations and that if Ms. Picciotto did not bring her site into

11

compliance by removing the cooler, Officer Keness would take enforcement action. (Id. at 19.) Finally, Officer Keness has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, 5.)

As demonstrated in the defendants' opening memorandum, and above in the discussion relating to Officer O'Neill, none of these allegations meets the heightened pleading standard. (Rather than repeating the discussion here, the Court is respectfully referred to the argument presented above relating to Officer O'Neill.) In sum, these allegations simply do not state facts sufficient to find that Officer Keness intentionally violated any clearly established constitutional right.

b. Officer Keness Is Entitled to Qualified Immunity.

For the same reasons that Officer O'Neill is entitled to qualified immunity, so is Officer Keness. Officer Keness is "shielded from liability for civil damages insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818; see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). Because the plaintiffs' allegations relating to Officer Keness do not demonstrate that his application of the regulations to them

12

violate clearly established constitutional rights, Officer Keness is entitled to qualified immunity and the claims against him in his individual capacity must be dismissed.

B. Plaintiffs' Claim for Damages Must Be
Dismissed for Lack of Jurisdiction.

In addition to injunctive relief, the plaintiffs seek "nominal monetary damages". Amended Complaint, p. 10. As detailed in the defendants' opening memorandum, if this Court dismisses the Bivens claims against the individual defendants, it lacks jurisdiction over any claims for money damages. The plaintiffs have failed to even address this argument. Accordingly, the plaintiffs' claim for money damages must be dismissed for lack of subject matter jurisdiction.

C. The Plaintiffs' Motion to Strike the January 20, 1995,
Letter of Randy Myers Should Be Denied.

With their complaint, plaintiffs filed a copy of a letter sent to defendant Richard Robbins, and claimed that Mr. Robbins' failure to quickly respond to their letter subjected him to a Bivens claim. Subsequently, Mr. Randolph Myers of the Solicitor's Office investigated the claims made by Mr. Thomas in his letter, and responded to Mr. Thomas with the results of his findings. This letter -- which was prompted by and directly responds to the letter previously filed by the plaintiff -- was filed with the defendants' opposition to the plaintiffs' motion to reconsider the denial of the TRO. Plaintiffs now seek to strike this letter. This motion should be denied.

First, the January 20th Myers' letter is directly responsive

13

to the letter filed by the plaintiff and merely makes for a more complete record. Second, under Rule 803(8) (C), Fed.R.Evid., this letter is not excluded by the hearsay rule, regardless whether Mr. Myers was available as a declarant. Accordingly, the Court can properly consider this letter in ruling on the pending papers.

D. The Plaintiffs' Motions for Sanctions Should Be Denied.

The Court has previously denied the plaintiffs' first motion for sanctions, without prejudice to plaintiffs' right to renew the motion after the Court decides the defendants' pending motion to dismiss. See January 27, 1995, Order. The plaintiffs' repeated motions for sanctions are meritless. The defendants have properly raised both the heightened pleading standard and qualified immunity to defeat plaintiffs' claims against the individual defendants.[7] The plaintiffs have failed to demonstrate any violation of Rule 11, Fed.R.Civ.P., and their motions should be denied with prejudice.

CONCLUSION

For the reasons stated and upon the authorities cited, all of the claims against the individual defendants, and the claims for money damages, should be dismissed.

Respectfully submitted,

______________________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney


[7 Once these issues are resolved, the defendants intend to file a motion for summary judgment as to all of plaintiffs' claims.]

14

_________________________________
SALLY M.. RIDER, D.C. BAR #436588
Assistant United States Attorney

OF COUNSEL:

RANDOLPH MYERS, Esq.
Office of the Solicitor

15