Plaintiffs' Motion for Reconsideration


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


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. [1]

Attributing the Court's decision to grant defendants' motion for summary judgment to misunderstanding, [2] 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. ]



The Court held,


The Court reasoned,

"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.

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. [3] Black's Law Dictionary defines "permit" as,

"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."

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.

[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.


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,

"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.

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,

"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.

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' 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).

"(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).

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. [4] 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.

[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.]



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. [5]

Counsel avoided the factual aspects of the allegation, and just argued, [6]

"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.

The Court was able to perceive that plaintiffs alleged a number of incidents which,

[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."

"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]

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

[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 [8] 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. [9]

[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).]