UNITED STATES DISTRICT COURT
Plaintiffs' Motion for Reconsideration
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2747
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 23, 1995 OPINION AND ORDER
Plaintiffs hereby move for reconsideration of the Memorandum Opinion ("Memo") filed by this Court on August 23, 1995.
Although it "does not view the matter as frivolous" (Order, February 8, 1995, pg.
9), the Court attests to some misunderstanding: "It is unclear from the pleadings what
federal claim is asserted here." Memo, ftn. 3. 
Attributing the Court's decision to grant defendants' motion for summary judgment
to misunderstanding,  plaintiffs will make a final attempt to clarify those points on
which the Court relies to terminate this matter.
[1 To avoid injustice, the defects in pro se plaintiffs' pleadings should not bar substantial claims. See, Haines v. Kerner, 404 U.S. 519 (1972).]
[2 The only apparent alternative to misunderstanding is that by the time of the January
6, 1995 TRO hearing the Court had already determined (1) plaintiffs are "campers," (2)
the issues raised in the instant Complaint had already been resolved by a District Court
decision entered in 1989, therefore (3) plaintiffs must be guilty in this case. This would
explain why the Court has refused to hear plaintiffs' witnesses, and relied instead on
defense counsel's unsubstantiated arguments. If the Court's decision was based on
prejudice, in the interests of justice, plaintiffs would ask the Court to reconsider. ]
1. A PERMIT EMPOWERS ONE TO DO SOME ACT NOT OTHERWISE ALLOWABLE
The Court held,
The Court reasoned,
"THE DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW
BECAUSE THE PLAINTIFFS' DISPLAY DID NOT COMPLY WITH PARK
SERVICE REGULATIONS." Memo, pg. 7 (CAPS in original).
Notwithstanding the Court's decision that a flag is really a taller sign, plaintiffs'
configuration of "flags and signs" would still be permissible under authority warranted by
their permit.  Black's Law Dictionary defines "permit" as,
"Picciotto specified that she would be using, among other things, "2 signs [and] 2
flags." Id., The permit expressly required Picciotto to read and adhere to the Park
Service regulations concerning signs, structures, and camping in Lafayette Park."
Memo, pg. 3.
Apparently the Court holds that the Park Service is precluded by law from issuing a
permit which would allow plaintiffs to display the flags and signs as, for years, plaintiffs
have displayed them. Because the factual allegations of the complaint must be
presumed true and liberally construed in favor of plaintiff (Scheuer v. Rhodes, 416 U.S.
"any document which grants a person the right to do something. A license or
grant of authority to do a thing. Matter of Building Permit and Zoning, 29
N.C.App. 749, 225 S.E.2d 647, 649. A written license or warrant, issued by a
person in authority, empowering the granter to do some act not forbidden by law,
but not allowable without such authority."
[3 What is the point of a permit that allows an act which is actually prohibited?
"It is settled, for instance, 'That (a permit restriction), like this one, makes
the peaceful enjoyment of freedoms which the constitution guarantees contingent
upon the uncontrolled will of an official - as by requiring a permit or license which
may be granted or withheld [, enforced or interpreted] in the discretion of such
official - is an unconstitutional censorship or prior restraint upon the exercise of
those freedoms.' Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)."
Quaker Action Group, supra,, ftn. 28 (parentheses substituting) [brackets added].]
232, 236 (1979), it is an error for the Court to have decided that the flag/sign
configuration is impermissible.
In fact, the Park Service routinely permits signs and structures which would not be
allowed under height and size restrictions specified in the regulations. Exhibit 1, hereto,
see also, Declaration of William Thomas, filed this date, ¶¶ 1 & 2.
2 PRO SE DEFECTS SHOULD NOT BAR REASONABLE UNDERSTANDING
Plaintiffs' pleadings have apparently caused some confusion,
"Plaintiffs contend that the regulations were 'arbitrarily enforced,' but also assert
that they do not raise a challenge under the Administrative Procedure Act, 5
U.S.C. 551 et.seq. Plaintiffs' Motion for Reconsideration, p. 3-4." Memo, ftn. 3.
At first, the Court at least recognized that,
Upon reconsideration, the Court now holds, "It is unclear from the pleadings
what federal claim is asserted here." Memo (August 23, 1995), ftn. 3. The Court
founds its reconsideration on the erroneous premise that,
"the alleged coercion of the Plaintiffs not to display their flags in the case at bar
involves ... protected nonspeech conduct." Court's Memo (April 12, 1995), pg 19.
Prior to the defendants' alleged coercion, the same combination of flags and
signs had been in the Park everyday, in view of hundreds of police officers, as well as
Mr. Myers and defendant Robbins, for over nine years. The only incident involving this
configuration, was resolved in plaintiffs' favor. Amended Complaint, Exhibit 3.
Declaration of William Thomas in Support of the Amended Complaint, ¶ 18.
"Plaintiffs base their argument on the contention that their display complied with
the Park Service regulations. As resolution of the issue before the Court turns on
whether the Plaintiffs' display indeed complied with the sign-size restriction, the
Court need not and shall not attempt to untangle the precise federal claim or
claims the Plaintiffs raise in connection with their allegation that the relevant
regulation was arbitrarily enforced. " Id.
Plaintiffs' Motion for Reconsideration (April 19, 1995) p. 3-4 intended to suggest
that the Court should not dismember plaintiffs' claim, and reassemble the parts as if
plaintiffs' Complaint (filed December 22, 1994) was a challenge to the administrative
authority of Mr. Myers' permit interpretation (written January 20, 1995).
Had plaintiffs intended to challenge the administrative authority of the agency's ex
post facto permit interpretation, they would not have framed their complaint as a Bivens
action.  By reducing the complaint to a question of "whether the Plaintiffs' display
indeed complied with the sign-size restriction" (Exhibit 1), rather than determining whether
defendants have pursued a pattern and practice "designed to chill, disrupt or terminate the
exercise of plaintiffs' constitutionally-protected expressive religious activities" (Complaint,
Count 1), it seems the Court has erred by construing the factual allegations in a light most
favorable to defendants. Reuber v. United States, 750 F.2d 1039.
"(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).
[4 This is not a case where Officers Keness and O'Neill were suddenly faced with an
emergency. Yet, plaintiffs were not notified of defendants' "permit requirement"
interpretation until January 23, 1995. See, Defendants' Motion to Dismiss (January 23,
1995), Exhibit 1, Randolph Myers' January 20, 1995 letter.
"In principle, an applicant would seem entitled to notice of a proposed
denial of his permit within 24 hours after submission of the application.....
"Should the Park Service discover information leading it to the reasonable
belief that a planned public gathering for which it has issued or been deemed to
have issued a permit will pose a serious ... threat to (some legitimate government
interest), it may exercise an emergency right to withdraw its previously given
approval. But in accordance with our view of the permit regulation, such emergency
withdrawal should be the subject of express standards formulated to provide for
principled consideration by an official of responsible rank and function, and should
be exercised only in accordance with those standards." A Quaker Action Group v.
Morton, 516 F.2d 717, 735 (1975), see also Niemotko v. Maryland, 340 U.S. 268,
271-272 Shuttlesworth v. Birmingham, 394 U.S. 147, 162-164.]
3. THE ALLEGED WELL ESTABLISHED RIGHT IS UNCHALLENGED
The Court held,
"To prevail under Bivens ... the Plaintiffs must establish that they had a
constitutional right to display their flags as they did. The First Amendment protects
expressive activity involving "speech" in Lafayette Park. United States v. Musser,
873 F.2d 1513, 1517 (D.C. Cir.)." Memo (August 23, 1995), pg. 6, ftn. 3.
The Court apparently fails to understand plaintiffs contention that their "continuous
presence" (rather than the narrower "right to display their flags as they did"), represents
the status quo vis-a-vis First Amendment exercise in the nation's premier public forum. 
Counsel avoided the factual aspects of the allegation, and just argued, 
The Court was able to perceive that plaintiffs alleged a number of incidents which,
"plaintiffs' attempt to maintain a 'continuous presence' at Lafayette Park, which the
officers ... construed as 'camping' in violation of regulations." Defendants'
Opposition to Plaintiffs' Motion for Partial Reconsideration to the Court's April 12,
155 order (August 14, 1995), pg. 3.
[5 Defendants do not contest plaintiffs contentions that (1) their expressive activities
are religiously motivated (see, plaintiffs' Declarations in Support of the Amended
Complaint), (2) "vigils" are expressly] recognized as permissible expressive activity (36
C.F.R. .96(g)(1)(i)), (3) that a "continuous presence" should be precluded from Lafayette
Park (Federal Register, March 5, 1986, pg. 7559), or (4) that plaintiffs activities were
likely to be understood. Declaration of William Thomas, February 9, 1995, Exhibits 1-3.]
[6 We believe the custom is for the Court to be more inquisitive.
" When the executive or administrative process abridges constitutional
rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court
rather than the agency that must balance the competing interests. The question
in this case is not whether some support for (defendants' ex post facto regulatory
enforcement rationalization) may be adduced, by reference to evidence in the
record and a claim of [official immunity, or] reasonable inferences or concerns, but
is whether the regulations at issue here are 'unnecessarily restrictive for the
purpose they are designed to serve." Quaker Action Group v. Morton, 516 F.2d
717, 722, see also, id. ftn. 2, citing United States v. O'Brien, 391 U.S. 367, 377 ;
Shelton v. Tucker, 364 U.S. 479; United States v. Robel, 389 U.S. 258, 268.]
taken together, indicates that Officers O'Neill and Keness displayed a hostile interest in
plaintiffs' allegedly "expressive, religiously motivated activities."
Ultimately the Court reduced plaintiffs' factual allegations to nothing more than a
question of the sign/flag configuration. Memo (August 23, 1995), ftn. 2. Because the
factual allegations of the complaint must be presumed true and liberally construed in favor
"The Plaintiffs' suit arises out of allegations that the above named Officers
harassed the Plaintiffs 'under color of various CFR and D.C. regulations' ...
Amended Complaint, p. 3. First, the Plaintiffs allege that Officer O'Neill falsely
arrested Plaintiff William Thomas for disorderly conduct, which deprived the
Plaintiff of his First Amendment rights. Second, the Plaintiffs argue that Officers
O'Neill and Keness informed Plaintiff William Thomas that a sign the Plaintiff
erected in the Park qualified as a "structure" banned under 36 C.F.R. S
7.96(g)(5)(x)(A)(4), and that the Plaintiff was therefore subject to arrest and the
sign subject to confiscation unless the Plaintiff removed it. Third, the Plaintiffs
argue that Officers O'Neill and Keness pressured Plaintiffs ... to remove two flags
from the Park 'under color of a CFR regulation.' Amended Complaint, p. 4. The
Plaintiffs assert that the Officers pressured the Plaintiffs despite the Plaintiffs'
alleged exemption from the applicable CFR regulations and the Plaintiffs'
possession of valid permits for the flags. Fourth, the Plaintiffs claim that Officers
O'Neill and Keness threatened to charge Plaintiff Concepcion Picciotto with a CFR
violation unless she removed a plastic cooler from the Park. Finally, the Plaintiffs
allege that Officers O'Neill and Keness often threatened to arrest the Plaintiffs for
unlawfully camping in the Park. The Officers also allegedly kicked the Plaintiffs,
prodded them with nightsticks, and banged on the Plaintiffs' signs." Court's
Memorandum (April 12, 1995), pgs.3-4. 
[7 Plaintiffs' suggest the Court has not considered that,
"government agen(t)s by their very nature (may be) driven to overregulate public
forums to the detriment of First Amendment rights, that facial viewpoint -neutrality
is no shield against unnecessary restrictions on unpopular ideas or modes of
expression, and that in this case in particular there was evidence readily available
that should have impelled the Court to subject the Government's restrictive policy
to something more than minimal scrutiny." Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 316 (parentheses substituting).]
of plaintiff (Conley v. Gibson, 355 U.S. 41, 45), plaintiffs believe, it is an error  for the
Court to separately dismiss each of plaintiffs' factual allegations without presuming that
plaintiffs' "vigil" is constitutionally protected, and to proceed in that light. 
[8 Plaintiffs do not believe this oversight is the correct approach.
"We are concerned with the possibility that this drawn out litigation has, to
this point, reflected an insensitivity ... to the consideration that there are 'park
values' in the use of these parks for speech and demonstrations. It is our
contemplation that the Park Service will evolve coherent policies reflecting the
concerns identified in this (Complaint), and thereby obviate the continual
involvement of the courts in what should be essentially matters of park
administration and local police responsibility." A Quaker Action Group v. Morton,
516 F.2d 717, ftn. 40 (parentheses substituting).]
[9 Other courts have recognized this vigil as constitutionally protected.
"(L)et us make some findings of fact. We are in an area where a vigil
protected by the constitution and by a governmental permit has been taking
place [since June 3, 1981]. It is a vigil that was described in the testimony of
the government witnesses as, quote, the Thomas Vigil, end quote." Plaintiffs'
Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the
Preliminary Injunction Hearing, (March 20, 1995), Exhibit 3, (Transcript, United
States v. et. al., USDC Cr. 85-255, ps. 1014, 1015, September 25, 1985).]