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
The United States, et. al. |
PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM IN OPPOSITION TO
PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF COURT'S
APRIL 12, 1995 OPINION AND ORDER
On August 4, 1995, the Court held a status conference in the above-captioned
case to address plaintiff Thomas' request, filed in Civil Action No. 95-1018, to
consolidate proceedings in that matter with the above-captioned case. At that time, the
Court inquired of Government counsel as to the filing of an Opposition to the Plaintiffs'
Motion for Partial Reconsideration of the Court's April 12, 1995 Order (filed April 19,
1995). Pursuant to an Order entered July 10, 1995, on August 14, 1995 defendants
filed an Opposition to the Plaintiffs' Motion for Partial Reconsideration ("Defts' Opp.").
Honesty and service to reasoned dialogue impel the undersigned to note an
impression that counsel's pleadings thwart the ends of justice, by confining the Record to
a repetitious pattern,  wherein plaintiffs repeatedly allege "defendants did it," and
defendants ignore the facts, repeating, "we didn't do it, because we were only enforcing
regulations".  To make this criticism constructive, the following Discussion ("A"-"D")
tracks defendants' Argument ("A"-"D") point by point ("A" responds to "A," etc.).
[1 E.g., Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Summary
Judgment ("Pl.s' Reply") (August 2, 1995), pg. 1.]
[2 E.g., Defts' Motion to Dismiss (January 11, 1995), pg. 1; Defts' Opp. (August 14,
1995), pg. 6.]
Defendants' Pleadings Seriously Misconstrue
The Separate Questions Of Fact and Law
Plaintiffs lodged a factually based complaint implicating defendants' motives. 
Integral to this Complaint is the "pattern and practice" allegation. 
It is plain, defendants have not disputed plaintiff's factual claims.  Rather,
they insist, the facts are moot under the legal doctrine of official immunity. But, it is
"This matter originated on December 22, 1994, when three long-term
demonstrators in Lafayette Park filed an Application for a Temporary
Restraining Order. Plaintiffs alleged that agents of the Park Police had
engaged in a pattern and practice of arbitrarily threatening, intimidating, and
harassing individuals, and particularly individuals engaged in First Amendment
exercise, in the Park, under color of various valid Park regulations, and that the
shooting death of Marcelino Corniel was a proximate result of this alleged
pattern and practice of regulatory enforcement." Plaintiffs' Proposed Order,
(January 11, 1995), pg. 1, cf, Complaint, page 1, and COUNTS 1-9.
[3 With respect to defendants' motions for summary judgment and dismissal, and prior
to any fact finding process, all "yes, they did" / "no, they didn't" arguments must be
resolved in plaintiffs' favor. See, Conley v. Gibson, 355 U.S. 41, 45 (1957); Reuber v.
United States, 750 F.2d 1039 (D. C. Cir. 1984), see also 5 Wright C Miller, Federal
Practice and Procedure, 1357 (1969).]
[4 "(T)he District Court must look to the way the complaint is drawn to ... claim a
right to recover under the Constitution and the laws of the United States." Bell v.
Hood, 327 U.S. 681 (1945).
[5 On the contrary, plaintiffs suggest, defendants' have actually sought to evade the
facts. Plaintiffs' Motion for Sanctions (January 24, 1995); Plaintiffs' Motion for
Sanctions (February 9, 1995); Plaintiffs' Reply to Defendants' Opposition to Plaintiffs'
Motion for Sanctions (February 27, 1995); Plaintiffs' Reply to Defendants' Opposition to
Plaintiffs' Motion to Strike Randolph Myers' Letter. (February 6, 1995). Plaintiffs' Motion
for Summary Judgment, and Suggestion for Rule 11 Sanctions (July 7, 1995).]
well-established that the doctrine of official immunity was never intended to shield
official misconduct motivated by some improper purpose.  See Harlow v. Fitzgerald,
457 U.S. 800 (1982). As the Court of Appeals has indicated,  the infirmity of
defendants' argument lies in requiring that the fact finding function of society divorce
itself from factual reality.  As discussed below, plaintiffs' factual allegations are
presently offset by nothing more than counsel's personal opinions.
A. The Court Was Correct In Concluding That Nonspeech Conduct
Meets the Heightened Pleading Standard for Imposing Liability on
the Individually Named Defendants.
Defendants contend, "plaintiffs have not stated facts which would support their
assertions that clearly established rights of which the defendants should have been
aware were violated..." Defts' Opp. pg. 2. Plaintiffs believe this honorable Court has
an appreciation for the importance of individual thought and harmless expression,
[6 Plaintiffs have shown that the alleged pattern and practice revolves around their
continuous expressive presence in the park. Each of the allegations involves some
aspect (specifically, "signs," "flags," or "presence") of plaintiffs' expressive activity. It
would be an error to, as defendants urge, eliminate the whole by individually sanitizing
each of its parts under color of official immunity.
"In an effort to overcome the obvious, defendants ... argue that each individual act
that they were shown to have committed was lawful, and that they consequently are
immune. This argument seriously misconstrues the nature of the qualified immunity
defense, and in particular the separate questions of fact and law." Hobson v.
Wilson, 737 F.2d 1, 26 ]
"(T)he character and effect of a conspiracy are not to be judged by
dismembering it and viewing its separate parts, but only by looking at it as a
whole." 16 American Jurisprudence, Second Edition, Section II.]
[8 NOTE, Defendants' record is devoid of any suggestion that plaintiffs pose any threat
to person, property, or propriety. ]
untrammelled by police state tactics, which counsel apparently fails to understand: 
By insisting that a flag, plus a sign, equals a regulatory violation, just because
the government has had Mr. Myers' write a note  attesting to his belief that such
is the case, counsel exhibits a profound misunderstanding about government's
legitimate power to suppress the exercise of expressive activity.
B. Whether Plaintiffs' "Continuous Presences" and
"First, the Plaintiffs have established that a clearly established right is
implicated by the Defendants' actions. It is beyond doubt in this Nation's
jurisprudence that nonspeech conduct sometimes qualifies as expressive
conduct protected by the First Amendment. ..."
"Second, the plaintiffs have claimed with sufficient specificity that the
Officers acted unreasonably in relation to that clearly established right by
threatening the Plaintiffs with arrest...." Order, pgs. 19.
"Expressive Activities" Implicate
A "Clearly Established Right," or "A Crime"
Are Questions of Fact.
Legally, there is little question that a "continuous presence," or "vigil" is
[9 "The right to speak freely and to promote diversity of ideas and programs is ... one of
the chief distinctions that sets us apart form totalitarian regimes." Terminiello v.
Chicago, 337 U.S. 4 (1945);]
[10 See, Motion to Strike Randolph Myers' Letter. (February 6, 1995); Pls' Reply
(August 2, 1995), pgs. 1-8, compare, Defts' Opp. page 7.]
The Supreme Court has established a well-known test to gauge the legitimacy of
government incursions on individual freedom of thought and expression:
Defendants apparently contend that Clark v. Community for Non-Violence, 468
U.S. 288 eliminated any limitations on the government's suppression of free speech
under color of regulation. However that contention has been summarily rejected. City
of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1553, 1554, summarily
affirmed, January 20, 1987, see also, Pls' Facts (July 7,1995), ¶¶ 1-4, 29-32.]
"Symbolic expression of this kind may be forbidden or regulated ... IF the
regulation is narrowly tailored to further a substantial governmental interest, and
IF the interest is unrelated to the suppression of free speech." United States v.
O'Brien, 391 U.S. 367, 376 (1968).
specifically permitted by law.  It is uncontested that plaintiffs' vigils have caused
no harm. Moreover, plaintiffs have submitted sworn declarations establishing that their
vigils are religiously motivated, intended to express opinions on issues of broad public
concern, and likely to be understood by observers.  The Government has not
directly challenged these facts,  and has flatly failed to identify any legitimate
interest to justify police harassment under color of regulations.
Absent any challenge to plaintiffs declared facts, defendants merely argue,
"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
[12 Concepcions' permit specifically allows her to "maintain a continuous 24 hour
presence." Complaint, Exhibit 3, 4th page. which could be done without a permit
because, applicable regulations distinctly provide:
The Park Service has explicitly stated it has no desire to preclude "continuous
vigils" from Lafayette Park. Federal Register, Vol. 51 No. 43, pg. 7559, 2nd col., March
5, 1985, for Mr. Robbins' name see, id. 7556, 2nd col.
"The term 'demonstrations' includes ... holding vigils or religious services and
all other like forms of conduct which involve the communication or expression of
views or grievances, engaged in by one or more persons, the conduct of which
has the effect, intent, or propensity to draw a crowd or onlookers...." 36 CFR
"(F)irst Amendment rights ... certainly include the right in a peaceable and
orderly manner to protest by silent and reproachful presence...." Brown v.
Louisiana, 383 U.S. 131; also, Watson v. Memphis, 373 U.S. 526 (1962);
Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91 (1965); Wright v. Georgia, 373
U.S. 284, 291-293; Johnson v. Virginia, 373 U.S. 61]
[13 See, e.g., Declarations of Ellen Thomas, Concepcion Picciotto, and William
Thomas, filed December 22, 1994, ¶¶ 1-3; Second Declaration of William Thomas,
generally, filed February 9, 1995; Declaration of Ellen Thomas, filed March 20, 1995 ¶ 1.]
[14 Plaintiffs' factual allegations must be taken as true and viewed in a light most
favorable to them. Conley v. Gibson, 355 U.S. 41, 45 (1957); Reuber v. United States,
750 F.2d 1039 (D. C. Cir. 1984).]
cannot be applied to them." Defts' Opp. pg. 3. 
Plaintiffs are not defendants in this case.  Except for counsel's arguments,
nothing in the record of this case suggests that plaintiffs were "camping." Without
adding any substance to the bare bones "plaintiffs are campers" insinuation, counsel
continues to argue this hotly contested innuendo as if it were established fact.. 
"there has been no showing that there was a clear violation of law with respect
[15 Here defendants interject an embellishment, nowhere have plaintiffs suggested
that camping restrictions cannot be applied to them. The plaintiffs only seek relief from
the law of official whim, with the modest and reasonable suggestion, "that defendants
(be required to) institute a standard of regulatory enforcement that will insure defendants
agents are precluded from arbitrarily, capriciously, or maliciously enforcing the valid
C.F..R. regulations pertaining to demonstration activities in Lafayette Park." Plaintiffs'
Proposed Order (July 7, 1995), pgs. 15-16.]
[16 See, e.g., Motion for Sanctions (January 24, 1995) pgs. 2 and 15; Plaintiffs' Motion
for Partial Reconsideration (April 19, 1995), pg. 6; Plaintiffs' Motion for Summary
Judgment, and Suggestion for Sanctions (June 7, 1995), pg. 8.]
[17 There is no evidence that plaintiffs were camping. So, purely for the sake of
argument, counsel seeks to create some question:
It can easily be seen that counsel's "'demonstration' is 'camping''" argument relies
on an abstract extension of, with all due respect, murky legal theory.
When courts first began pondering the issue foresighted elements of this Circuit
Court recognized the "camping" regulations as potentially "bad law." Community for
Creative Non-Violence v. Watt, 730 F.2d 600, 605 J. Ginsburg, J. Edwards' concurring,
see also, id., 601, J. Mikva, separate concurring opinion.
Members of the Supreme Court also expressed strong reservations to the rational
and intent of the regulation itself. Clark v. Community for Creative Non-Violence, 468
U.S. 288, 301-316 (1984). Although the majority held the "camping" regulation to be
constitutionally valid, the Court clearly did not find that "demonstrating is camping."
"In the unusual circumstances (of a round-the-clock vigil), sleeping must
be taken to be sufficiently expressive in nature to implicate First Amendment
scrutiny in the first instance." United States v. Abney, 534 F.2d 983, 985
"The regulation otherwise left the demonstration intact, with its symbolic city,
signs, and the presence of those who were willing to take their turns in a
day-and-night vigil." Id., 293.]
Here is the nexus of the controversy: plaintiffs claim it's a protected "vigil"
(supra, ftn. 12) and defendants call it criminal "camping." A careful scrutiny of the
Record fails to reveal any specific allegations that plaintiffs violated the provisions of
the "camping" regulation. On the other hand there are indications that defendant
officers unreasonably used the regulation to color acts of harassment and intimidation.
E.g., Second Declaration of Concepcion Picciotto (January 24, 1995), ¶ 6. 
On the record this factual dispute is best reflected in photographs submitted by
both parties  All these photographs depict the demonstration signs jointly
maintained by plaintiffs Picciotto and Thomas. Plaintiffs assert these photographs
graphically illustrate the socially beneficial exercise of free thought and expression,
Defendants contend they depict a crime. 
Defendants have charged that, "Plaintiffs in this action are three perennial
to plaintiffs' attempt to maintain a 'continuous presence' at Lafayette Park
(which the officers reasonably construed as 'camping' in violation of
regulations)," Defts' Opp. pg. 3 (parenthesis in original).
[18 "(I)t is never permissible to impede or deter lawful civil rights/political organization,
expression or protest with no other direct purpose and no other immediate objective than
to counter the influence of the target associations." Hobson v. Wilson, 737 F.2d 1, 27,
emphasis in original, see also, Dombrowski v. Pfister, 380 U.S. 479, 482.]
[19 Plaintiffs' Third Motion for Sanctions, (February 9, 1995) Second Declaration of
William Thomas, Exhibit 2-C; Defendants' Motion to Dismiss the Amended Complaint, or
in the Alternative of Summary Judgment, May 15, 1995, Exhibits 2 A-C.]
[20 Plaintiffs' Statement of Issues to Which There Exists a Material Dispute (filed June 2,
1995), ¶¶ 1-3]
demonstrators in Lafayette Park." Motion to Dismiss (January 11,1995), pg. 1. 
As a legal matter the Court should recognize that there is no law or regulation which
criminalizes perennial demonstration. Supra, ftns. 12 & 17. To maintain balance the
Court must also test the other perspective. Essentially, plaintiffs submit, their "vigil,"
which has continued since 1981, has some attributes of a landmark tribute to the First
Amendment, and, as such, represents the status quo. 
Hence, the question here is whether a fourteen-year-old vigil implicates First
Amendment protection, or whether, as defendants urge, jurisprudence in this nation,
"It is the right of every American to take a stand and make a point in Lafayette
Square." Caption under a picture of Plaintiff Concepcion Picciotto, Berlitz
Travel Guide, 1991, Second Declaration of William Thomas, Exhibit 2-C; see
generally, Exhibits 1-3 (February 13, 1995).
[21 Plaintiffs have previously analyzed this characterization in some detail. See,
Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, IDENTITY CRISIS,
and stare decisis, pages 4 - 10.]
[22 While defendants here now argue that plaintiffs' vigil is a crime, at the same time
defendants in Civil Action No. 95-1018 offer a contradictory argument to advance their
interests that case:
These contradictory representations of the same activity strengthen the argument
"(Plaintiff) can and has moved his platform back to Lafayette Park and resumed
the vigil he has maintained since 1983. Plaintiff will still have ample opportunity
to exercise his First Amendment Rights absent preliminary injunction." District of
Columbia Defendants' Motion to Dismiss (June 21, 1995), pgs. 8, 9.
[23 "I don't want to risk irritating the Court into a potentially tragic opinion. A lot of
people's rights are at stake here. It would be unfortunate to give the police the signal
that it's okay to kick and hit people if they're suspected of violating a minor regulation,
and, should the person rebel against such contemptuous treatment, then it's okay for the
police to kill him. If the police aren't held to civilized standards of behavior, what's wrong
with death squads?." Plaintiff Ellen Thomas' Opposition to Plaintiff William Thomas'
Motion to Dismiss for Frivolity (February 1, 1995), pg. 2.]
under color of "public nuisance," has come to condone arrest, assault, intimidation, or
whatever other means Government agents find "necessary" to harass people who are
raising issues of profound importance in a "quintessential public forum."