PLAINTIFFS' REPLY


Perhaps a fact finding process would decide plaintiffs were indeed guilty of violating some regulation, however, aside from counsel's argument and insinuation, there is nothing on the record of this case to indicate plaintiffs did anymore than to harmlessly engage in the exact same activity which has engaged them on daily basis, seven days a week, 365 days a year [24] -- without incident -- since at least 1987. [25]


[24 The Supreme Court has required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of the expressive nature of plaintiffs' "symbolic vigil" depends on the "quantity" of their round-the-clock "symbolic vigil" in the public forum. Buckley v. Veleo, 424 U.S. 1. Reply to Defendants' Response to Plaintiffs' Notice to Reschedule the Preliminary Injunction Hearing (March 20, 1995) pg. 17.]

[25 Plaintiff Thomas and the Court have agreed that the Court's initial impression of this "continuous presence" was the correct one. Motion for Sanctions (February 9, 1995), Exhibit 6, pg. 9. In that instance the Court of Appeals disagreed, and this Court, relying on the "deterrent effect," did what it felt bound to do. Id. pg. 66. Arguably there was something to the Court's deferent theory; largely as a result of the Court's decision, Mr. Joseph and Sunrise re-evaluated their motivating beliefs to some degree. However, the consistency which brings these plaintiffs before the Court in the instant matter attests to the fact that Thomas truly believes what he told the Court in 1987. Honestly, plaintiffs suspect that the 1987 encounter may have had some affect on this honorable Court's thinking which has resulted in a prejudicial impression that these plaintiffs are "campers," rather than "litigants" who are bringing life and death, constitutional issues for serious consideration. For example, plaintiff Thomas stated,
" I want to make very clear, I think that social change is inevitable -- there's only two ways that I think it comes about, either through violence or through reason and logic, communication. I think there's something wrong in the world, and I'm trying to bring about a change through reason and logic." Id. pg. 33.
Although the substance of plaintiffs' expressions have never been subject to judicial review this Court eventually held, "you can't yell 'fire' in a theater." Id. pg. 67.

Therefore, the appearance of justice would be better served if a jury, free of preconceptions, where to determine whether plaintiffs' "vigil" is a "crime."

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Questions of "what" plaintiffs may or may not be, or the nature of their activities in Lafayette Park involve factual issues. Claims raising issues of intent, good faith, or other subjective feelings, are ordinarily best reserved for resolution by a trier of fact. White Motor Co. v. United States, 372 U.S. 253 (1953).

"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." Defts' Opp. pg. 4. compare,

Plaintiffs do not dispute, that plaintiff Picciotto had a permit, but assert her permit said nothing about "sign structures." The only reason a permit was applied for in this case was in a futile effort to stop the harassment of Officers O'Neill and Keness, harassment which stemmed from the distortion of words similar to "sign structures." [26]

"The permit .. contained the explicit direction that a permittee is 'responsible for reading and adhering to' regulations applicable to 'signs, structures and camping in Lafayette Park.' Permit, p. 1." Defts' Opp. pg. 5.

Plaintiffs agree, but the regulations read the same for everyone. The fact that the regulations do not preclude "attaching a flag to a sign," or "raising the base of a sign 13 inches above the ground," is evident by the fact that counsel cannot direct us to those


[ Defendants' references to the small group permit exemption are merely confusing. Plaintiffs assert that she did not need a permit. Freedom of speech works from the idea that speech, or nonspeech, expression is free so long as it does not harm or threaten some legitimate social interest, hence it does not extend to falsely yelling "fire" in a theater. Freedom of speech does not require a permit. On the other hand, plaintiffs, "not supplicants seeking to wheedle an undeserved favor from the Government. They are citizens (and Thomas) raising issues of profound public importance who have properly turned to the courts for the vindication of their constitutional rights." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 301]

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words. [27] Which explains why, despite the Court's Order (July 3, 1995, pg. 2), defendants still can do no more than vaguely refer to "language" which "the Department of Interior, through (Mr. Myers), deems applicable." Defts' Opp. pg. 7. [28]

"Respecting plaintiffs' signs and flags, an integral part of plaintiffs' expressive vigil, the actions of Officers O'Neill and Keness amount to 'making up the law as they go along.' With respect to the similarly-situated Marcelino Corneil, plaintiffs assert that Officer X acted as executioner after Mr. Corneil unfortunately rebelled against Officer O'Neill's edict." Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, pg. 17.[29]

Although defendants have not recognized plaintiffs' Ninth Amendment claims, the right of individuals to harmlessly exercise the fundamental freedoms of thought (religious belief) and expression in a public forum, the most fundamental of human rights, without being subject to physical and psychological torment (assault, arrest,


[27 For further discussion on the unreasonableness of the officers' application of the sign-size regulations to plaintiffs' expressive vigil and Mr. Myers' attempts to cover for them, see plaintiffs' Third Motion for Sanctions (February 9, 1995), pgs, 15-23 ]

[28 Compare, Motion to Strike Randolph Myers' Letter. (February 6, 1995); Pls' Reply (August 2, 1995), pgs. 1-8.]

[29 Plaintiffs have shown that Mr. Corniel was not camping, but even if he had been the actions of the officers was still more than inappropriate.

Plaintiffs "are not challenging Officer O'Neill's duty to enforce the 'camping' regulation. Instead plaintiffs assume the position that, assuming Marcelino was 'camping,' Officer O'Neill had only three legitimate options (warning him, issuing a citation, or arresting Marcelino), and that when Officer O'Neill kicked Marcelino and jabbed Marcelino with a nightstick, Officer O'Neill exceeded his official authority and committed the criminal act of assault." Complaint, para. 20; Proposed Order to Dismiss as Frivolous, page 8; Third Motion for Sanctions (February 9, 1995), pg. 17.

Plaintiffs have claimed that the camping regulation was used as a pretext to harass them. The incident where Mr. Corniel was killed simply helps to illustrate the need for responsible supervision.]

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intimidation, or harassment) at the hands of salaried or contract Government agents, may not specifically be enumerated in the Constitution, but for the sake of civilized society, it must be recognized as a right inherently "retained" by the people.

"Defendants do not argue that extraordinary circumstances prevented them from knowing that the actions they were alleged to have taken were illegal. They claim instead only that no individual act was illegal, thereby overlooking plaintiffs' focus on the motives with which the defendants acted. whether defendants acted with an intent to impede plaintiffs' rights of association was a question of fact for the jury." Hobson v Wilson, 737 F.2d 1, 27, f tn. 79.

The essential "pattern and practice" claim should not, as defendants suggest be dismembered. Supra, ftn. 6. Nor should defendants be able to get by with the argument, "The officers thought they were being reasonable, and they didn't have any responsible supervision to tell them otherwise."

C. Plaintiffs Have Stated Facts Which Give
Defendants Sufficient Notice Of Allegations
That Park Police Officers Were Negligently Supervised

The animating question before the Court is whether,

"defendant Robbins and other defendants in supervisory capacity have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Cornel in particular, in danger by failing to properly oversee a well-armed police force, although they knew, or should have known, of extra-legal conflicts by their subordinates toward demonstrates and others in the Park. " Complaint, Count Six, see also Pls' Reply (August 2, 1995), pg.2.

Although defendants demand that the Court recognize the "authority" of Mr. Myers'


[30 Allegedly, the shooting of Mr. Corneil was a result of the fact that certain Park Police officers have improperly enforced applicable regulations against the plaintiffs, and others similarly situated. At bar plaintiffs assert the killing of Mr. Corneal illustrates the logical end of a standardless enforcement policy capable of repetition yet continuously evades the fact finding process. Reply to Defendants' Opposition to Plaintiffs' Motion to Exclude Extra Judicial Materials Obtained by Agents Working to Afford Defendants Unfair Legal Advantage in the Instant Case (March 27, 1995), pg. 1. ]

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letter (which relies on Mr. Robbins' authority [Myers' Declaration, July 25, 1995]), they have taken great pains to avoid discussing the responsibilities of Mr. Robbins. Now,

"Defendants (correctly) 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." Defts' Opp. pg. 5 (parenthesis added).

Defendants' accurate assumption indicates that they have sufficient notice of plaintiffs claims to proceed pursuant to the provisions of Fed. R. Civ. P. 8. If Mr. Robbins does not have the responsibility plaintiffs allege, defendants should simply demonstrate that fact, by indicating who has, instead of speculating about previous "intense litigation," etc. Defts' Opp. pgs. 5-6.[31]

Of course, the most compelling evidence that Mr. Robbins bears enough "responsibility" vis-s-vis signs, flags, camping, and "appropriate law enforcement actions" are probably his own letter (Plaintiffs Notice (February 25, 1995), Exhibit 1), Mr. Myers' letter of January 20, 1995, and Mr. Myers' Declaration, July 25, 1995.

Thus, we hark back to the underlying "pattern and practice" claim. Supra. pg. 2.

D. Plaintiffs Have Stated Facts Sufficient to Overcome
the Qualified Immunity of the Officers in the Pattern and
Practice of Their Enforcement of the Regulations Applicable to
Demonstrations in Lafayette Park.

Defendants can't, of course, deny that they all share some common interest in


[31 Even assuming, for no good reason, that Mr. Robbins was not the responsible official individual to whom Thomas' letter should have been addressed, this complaint also names the United States, and the Park Police as defendants. Surely there must be some individual responsible for supervising the Park Police somewhere, and it is axiomatic that a complaint should not be dismissed unless there is no conceivable combination of circumstances which would entitle plaintiff relief.]

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plaintiffs' expressive activities, symbolic vigil, signs, flags, or, crediting Officer O'Neill's Report, the manner in which Thomas may "gesticulate" during a conversation. [32] Thus they have no defense except to argue they are only "doing little more than" their job. (Defts' Motion to Dismiss (January 14, 1995), pg. 1.

Defendants concede, plaintiffs suggest, "the individual officers should be liable for damages because there was 'no probable cause for any threat' to plaintiffs, and that the officers' conduct was 'malicious'" Defts' Opp. pg. 7. But their only basis for arguing that they weren't unreasonable or malicious is, "the language ... which the Department of the Interior, through its counsel, deems applicable to the activity at issue." Id.

But that isn't enough to answer the "crucial question." [33] "the ultimate issue in the present case is (defendants') subjective state of mind." Thomas v. United States, 557 A.2d 1296, 1300 (substituting). [34]


[32 NOTE, Defendants have apparently failed to address the issue of Officer O'Neill's "disorderly conduct" arrest. Plaintiffs' Motion for Partial Reconsideration, pg. 8; see also, Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing (March 20, 1995), pgs. 22-22.]

[33 The Circuit Court has also held that the Supreme Court did not intend to entirely preclude inquiry into a defendant's "subjective" motivation:
"When the governing precedent identifies the defendant's intent as an essential element of plaintiff's constitutional claim, the plaintiff must be afforded an opportunity to overcome an asserted immunity with an offer of proof of the defendant's alleged unconstitutional purpose." Martin v. D.C. Metro. Police Dept, 812 F.2d 1425, 1433, modified, 817 F.2d 144 (D.C. Cir. 1987).]

[34 Traditionally the factfinding system has been the preferred method of finding facts.
"(A) law enforcement officer may allege and prove in defense his subjective good faith belief that his conduct was lawful and the objective reasonableness of his belief under the circumstances." Glasson v. Louisville, 518 F.2d 899, 909, cert denied, 423 U.S. 930. Motion for Sanctions (January 24, 1995), pg. 19; Motion for Sanctions (February 9, 1995), pg. 26.]

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Defendants can't have it both ways, they can't say Mr. Robbins is immune because of his irresponsibility, while simultaneously arguing that Mr. Robbins may delegate responsibility to Mr. Myers.

"Petitioner argued that although she had no knowledge of an agreement between (defendant) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at 157.

While, proof would be necessary to prevail at trial, at this point, "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff." Scheuer v. Rhodes, 416 U.S. 232, 236 (1979).

CONCLUSION

Thus, defendants' Opposition to the Motion for Reconsideration fails to set forth any bases in law or in fact that would preclude the Court from making the factual revisions necessary to make those portions of its April 12, 1995 Order consistent with the remainder of the Court's well reasoned. decision. For these reasons the Court should grant plaintiffs leave to make discovery, and schedule a trial to determine the facts at issue.

Respectfully submitted,

_____________________________
William Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001
202-462-0757

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CERTIFICATE OF SERVICE

I hereby state that, on August 21, 1995, I served a copy of the foregoing Reply to Defendants' Opposition to Plaintiffs' Motion for Partial Reconsideration of the Court's April 12, 1995 Order, by first class U.S. mail, postage prepaid, upon the office of the United States Attorney for the District of Columbia at 555 4th Street NW, Washington, D.C.