Within the broad panorama of legal opinion, this Court lost sight of the fact that Plaintiffs have emphasized they are not challenging the
[10 On the other hand, while Thomas has been convicted of violating the camping regulation four times since 1983, and Ellen Thomas has been convicted twice, it is undisputed, that Concepcion Picciotto has maintained a continuous vigil in Lafayette Park, without a single conviction. Concepcion had the honor of being the first person ever arrested under the camping regulation, but that charge was thrown out of court (on the other hand, Thomas was convicted). In fact, Ms. Picciotto's ONLY conviction for violating any of the other myriad of Park regulations, some of which are presently at bar on allegations of arbitrary enforcement, was reversed by the District Court. United States v. Picciotto, 875 F.2d 345 (1989).]
[11 On the other hand, the only fact-finding on record concerning plaintiffs' allegations of arbitrary enforcement found "an incredible number of incidents stemming from (arrests of plaintiffs) on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Thomas v. United States, USDC C.A. 74-3552, Memorandum and Report, January 13, 1984 (Motion to Recuse, Exhibit 3), page 9.]
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validity of the camping regulation. Rather, the Court recalls, with respect to the camping regulation and the issues at bar, the only question is whether, under color of the camping regulation, Officer O'Neill's official authority permitted him, or Park Service policy required him, to kick and prod Marcelino Corniel with a baton if Officer O'Neill suspected Mr. Corniel of violating the camping regulation.
In addition to the manner of camping regulation enforcement, Plaintiffs' pleadings raise reasonable questions regarding the supervision of enforcement of regulations governing constitutionally protected activity in the Park.
At this point, it is uncontested that on a number of
occasions in November 1994 Officers O'Neill and Keness
threatened, without probable cause, to arrest Thomas and
confiscate one of two signs he was attending under color of the "structure" regulation. Complaint, pages 4 & 5.
It is also uncontested that, on November 14, 1994 Thomas, mailed "a letter to Defendant Richard Robbins with respect to the actions of Officers O'Neill and Keness" (Id, see also Declaration of William Thomas), and that "Thomas received a return receipt acknowledging delivery (by certified U.S. mail) of the letter to Mr. Robbins' office; Mr. Robbins has yet to reply to the letter." Id, Exhibit 1.
Plaintiffs alleged that "on several occasions in late November Officer O'Neill, without probable cause, threatened to arrest Concepcion and confiscate ... two flags [12] from the White House Anti-Nuclear
[12 Exhibit 2 attached to the Declaration of William Thomas, is a copy of a United States District Court order, dated October 12, 1990, directing the Park Police, Defendant Robbins and others, to return the same flags at issue here. Plaintiffs claim those Defendants "had clear judicial notice regarding the 'First Amendment rights' involved." Complaint, page 4]
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Vigil,under color of a CFR regulation." Complaint, page 4.
It is undisputed that, "in an attempt to placate Officer O'Neill, plaintiff Concepcion applied for and obtained many permits [13] Thomas, Exhibit 1), and that despite these "valid Park Service permits, on separate occasions during November and December, first Officer O'Neill, then Officer Keness each repeatedly threatened to arrest Concepcion and confiscate her flags unless she removed them from the demonstration."
While the Court might not fully understand exactly what
Plaintiffs are trying to say through their "continuous expressive presence in the Park," the Court does realize that it has a serious responsibility to protect their right to say it. Likewise, although the Court may not fully appreciate the value of the flags at issue, the Court must recognize that flags do merit First Amendment consideration. Tinker v. Des Moines, 393 U.S. 503, see also, Footnote 10, supra.
Since, in the wake of the TRO hearing, Plaintiffs
allegations are the only "evidence" [14] On record, it can only appear that Defendants have indeed interfered with Plaintiffs' peaceful expressive activities at least to a degree that merits further inquiry.
[13 Plaintiffs are exempted from permit restrictions pursuant to 36 CFR 7.96 (vii)(E), "the Small Group Permit Exemption." Complaint, page 4.]
[14 "The law of evidence presupposes that in judging the claims of the litigants, it is important to discern the true state of affairs underlying the dispute. It proceeds on the premise that the way to find the truth is to permit the parties to present to the court all the evidence that bears on the issue to be decided, Fed. R. Evil. sections 401-901 (b)." McCormick on Evidence, 3rd Edition (4th reprint, 1991), page 540. See also Fed. R. Evid. 611 (a); see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.d 923 (1965); Fed. R. Evid. 406 (b), Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219.]
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