Defendant's Memorandum

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2747
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF COURT'S APRIL 12, 1995 OPINION AND ORDER

Defendants respectfully oppose plaintiffs' motion for partial reconsideration of the Court's April 12, 1995 Order, granting, in part, defendants' motion to dismiss the individually named defendants.l Defendants oppose plaintiffs' request for reconsideration on the grounds that plaintiffs have stated no bases in law or in fact which would warrant the Court's reversal of the dismissal of the majority of their claims in the April 12th Order.

For these reasons, set forth more fully below, and also for the reasons set forth in defendants' memorandum in support of their motion for partial reconsideration of the Court's April 12th Order and for summary judgement, plaintiffs' request for reconsideration should be denied, and the portions of the Court' s April 12th Memorandum and Opinion challenged by plaintiffs in their motion for

[1 Defendants, by motion dated May 15, 1995, moved for partial reconsideration of the Court's April 12th Order, specifically for reconsideration of the portion of the Order denying dismissal of the claims against Officers O'Neill and Keness regarding plaintiffs' claims concerning the display of flags. Record at 78.]

reconsideration should stand. Moreover, for the reasons set forth in defendants' motion for reconsideration of the portion of defendants' motion denied by the Court in its April 12th rulings, and in their motion for summary judgment, this action should be dismissed in its entirety against all defendants, or summary judgment entered in their favor.

ARGUMENT

Plaintiffs have raised no new or different factual or legal
bases which would warrant the Court's reconsideration of its
dismissal of the majority of the claims against the individual
defendants in this action.

Plaintiffs make several arguments in their memorandum in support of their motion for reconsideration in an attempt to convince the Court that its analyses of this action as set forth in the April 12, 1995 Memorandum Opinion was flawed or incorrect, except with respect to the analysis of the flag claim. However, all of these arguments are unavailing, and the careful reasoning set forth in the April 12 Memorandum Opinion challenged by plaintiffs' motion should stand.

A. The Court was correct in concluding that plaintiffs have not stated claims which meet the heightened pleading standard for imposing liability on any of the individually named defendants.

As accurately stated by the Court, plaintiffs' claims against the individual defendants must be reviewed according to the heightened pleading standard. Applying that standard, as the Court properly did, it is clear that plaintiffs have not stated facts which would support their assertions that clearly established rights of which the defendants should have been aware were

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violated, or that the officers conduct towards them was motivated by some improper purpose. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S,Ct. 2?27, 2738 (1982); Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039 (1987).

B. The Court correctly concluded that plaintiffs failed to show that they had a clearly established right to engage in the activities at issue.

Plaintiffs assert in their motion that their activity of having a "continuous presence" in Lafayette Park is constitutionally protected expressive activity, and the enforcement of the National Park Service restricting camping activities cannot be applied to them. The Court was correct in concluding that plaintiffs' have not sufficiently alleged that they were engaged in protected activity to defeat the qualified immunity of the individual defendants . The fact that plaintiffs allege their activity to be expressive, does not, in and of itself, create or establish a clearly established constitutional right to engage in that activity. To the contrary, the law of qualified immunity exists to protect against just such allegations as these. The law is clear that in order individual liability to lie, the plaintiff must show that the violation of law must be clear and apparent. Anderson v. Creighton, 107 S.Ct. at 3039; Siesert v. Gilley, 895 F,2d 797 (D.C. Cir. 1990). As the Court correctly analyzed in its April 12th Memorandum, there has been no showing that there was a clear violation of law with respect to plaintiffs' attempt to maintain a "continuous presence" at Lafayette Park (which the officers reasonably construed as "camping" in violation of
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regulations),[2] or their placement of a cooler (which the officers reasonably interpreted as prohibited by the regulations prohibiting placement of structures which "tend to harm park resources including aesthetic interests").[3] Thus, the Court's analysis and dismissal of these claims was clearly correct.

With respect to plaintiffs' allegations concerning their signs, the record reflects, and defendants do not dispute, that plaintiff Picciotto had a permit for display of sign structures. See Exhibit 4 to First Amended Complaint. However, as defendants have argued in their pleadings in support of their motions for dismissal and for summary judgment, the fact that plaintiff Picciotto was issued a permit does not exempt the structures from other applicable regulations.4 In this case, the regulations still applicable to the signs included the sign-size regulations set forth in 36 C.F.R. 7.96(g)(5)(x)(B)(2). Like the claims relating to their "continuous presence" or to the cooler, the officers application of the size and height restrictions to plaintiffs' sign

[2 See 36 C.F.R. 3 7.96(i).]

[3 see 36 C.F.R. s 7.96(g)(5)(x)(A)(4) .]

[4 The permit, like all permits issued by the Park Service, contained the explicit direction that a permittee is "[r]esponsible for reading and adhering ton regulations applicable to "signs, structures and camping in Lafayette Park. " Permit, p. 1, at Exhibit 4. In addition, as defendants have previously noted for the Court, plaintiffs' structures were not otherwise exempt from regulation by the "small group" exception, since that exception applies only to hand-held signs.]

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structures cannot be seen as violating a clearly established right.[5]

C. Plaintiffs have not stated facts which show that Defendant Robbins, as Assistant Solicitor for the Department of the Interior, was grossly negligent in the supervision of the Park Police Officers.

As the Court correctly concluded in its dismissal of all claims against him, plaintiffs have stated no facts which could support a claim against Richard Robbins, Assistant Solicitor of the Department of the Interior for supervisory negligence. While plaintiffs do not so indicate in their memorandum, defendants assume that plaintiffs' attachment to their memorandum of a copy of a National Park Service 1982 Operations Division Memorandum is intended to suggest a particular supervisory obligation or standard of Mr. Robbins as Assistant Solicitor. To the extent that it is intended to have such significance, the memorandum is clearly wholly irrelevant to the issues before the Court in this action. First, on the face of the thirteen-year-old memorandum it is clear that it concerns then newly-issued regulations that were subject to ongoing litigation or were different than the ones before the Court in this matter, During the period of time of the attached memorandum, the camping regulation at issue here, found at 36 C.F.R. S 7.96(i), was subject to intense litigation, and diverse rulings, before it was ultimately upheld by the United States

[5 See defendants' memorandum in support of their motion for partial reconsideration of the Court's April 12th Memorandum Opinion and Order for further discussion on the reasonableness of the officers' ' application of the sign-size regulations to plaintiffs' display of flags attached to the stationary signs.]

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Supreme Court as a valid time, place and manner restriction on First Amendment expression. See Clark v. CCNV, 468 U.S. 288 (1984), re\iersina 703 F.2d 586 (D.C. Cir. 1983). Likewise, the structures regulation for the White House sidewalk, which is at issue here, was subject to intense litigation. White House Vigil v. Clark, 746 F.2d 1518 (D.C. Cir. 1984). Thus, there is absolutely no probative significance whatsoever to the attached memorandum, and as the Court indicated in the April 12th Memorandum, plaintiffs have alleged no facts which would support a claim that Mr. Robbins should not have qualified immunity on plaintiffs claims against him.

D. Plaintiffs have not stated facts sufficient to overcome the qualified immunity of the officers in the conduct of their duty to enforce the regulations applicable to demonstrations in Lafayette Park.

Finally, plaintiffs argue in their motion for partial reconsideration that the individual officers should be liable for damages because the officers there was "no probable cause for any threat" to plaintiffs, and that the officers' conduct was "malicious." In their pleadings in support of their original motion to dismiss and in support of their motion for summary judgment, defendants have fully explicated the reasonableness of the officers actions toward plaintiffs in the enforcement of the regulations applicable to activities in and around Lafayette Park. As the Court has properly assessed and analyzed according to the standards applicable to claims seeking individual liability against federal officers, plaintiffs have not stated facts which can support their claim for damages against the officers, as they have

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not shown a violation of clearly established rights or improper motive on the part of the officers. It is axiomatic that in cases such as this, the individual officers are entitled to the protections of qualified immunity as prescribed under well-settled law. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); Butz v. Economou, 438 U.S. 478, 507-508 (1978); Hobson v. Wilson, 737 F,2d 1, 29 (D.C. Cir. 1984) , cert. denied, 470 U.S. 1084 (1985) ; Martin v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987). Thus, plaintiffs' motion for reconsideration fails to set forth any bases in law or in fact that would warrant the Court's reversal of its proper rejection of these claims.

With respect to the one claim which t.he Court's April 12, 1995 Memorandum Opinion and Order sustained, plaintiffs' claim regarding display of flags, in their memorandum in support of their motion for reconsideration of that portion of the Opinion and Order and for summary judgment, defendants' have set forth in detail why the officers are, in fact, entitled to qualified immunity on this claim. In their recent pleadings, defendants have presented to the Court the language of the regulations which the Department of the Interior, through its counsel, deems applicable to the activity at issue, and the legislative history which supports that conclusion. By contrast to plaintiffs' motion for partial reconsideration in which plaintiffs merely restate and argue the allegations in their complaint, defendants have in their motion for reconsideration and subsequent pleadings demonstrated why they are entitled to

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dismissal of the flag claim, along with all other claims properly dismissed by the Court in its April 12, 1995 Order.

For these reasons, plaintiffs' motion for partial reconsideration should be denied.

Respectfully Submitted,

________________________
ERIC HOLDER Jr. DC Bar #303115
United States Attorney

________________________
KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney

OF COUNSEL:
Randolph J. Myers, Esq.
Office of the Solicitor
United States Department of Interior

CERTIFICATE OF SERVICE

I HEREBY CERTIFY this 14th day of AUGUST of 1995, that service of the foregoing DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION FOR PARTIAL RECONSIDERATION was made by sending copies thereof by first class mail, postage prepaid, to:

William Thomas
Apartment B
2817 llth Street, N.W.
Washington, D.C. 20001

KIMBERLY N TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Rm 10-106
Washington, D.C. 20001
202-514-7141