Plaintiffs' Memorandum

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
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL
RECONSIDERATION OF THE COURT'S APRIL 12, 1995 ORDER

INTRODUCTION

The Court's Order of April 12, 1995 pins plaintiffs on the horns of a puzzling dilemma. On the one hand, plaintiffs believe, they readily appreciate the clear and constructive reasoning behind those parts of the Court's ruling which articulate clear grounds to justify the Court's earlier ruling that "it does not view the matter as frivolous."[1]

On the other hand, in light of those parts of the Order which they believe to be supported by fact, law and reason, pro se plaintiffs are unable to fathom the remainder of the Order.

In effect those parts of the Court's decision to which the instant pleading addresses itself apparently leave only two possible alternatives, (1) the Court has erred slightly, but significantly in reading the complaint, or (2) plaintiffs are incapable of comprehending the language of the judicial system.

DISCUSSION

In language which, to plaintiffs' minds, seems not only comprehensible, but also eminently reasonable, the Court wrote:

"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. Tinker v DesMoines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969). Plainly, the alleged coercion of the Plaintiffs not to display their flags in the case at bar involves such protected nonspeech conduct, See Stromberg v. California, 283 U.S. 359, 369-70

[1 Additionally plaintiffs understand that the Court will hold a hearing on Wednesday, April 19, 1995, at 2:00 p.m.]

(1931) (striking down prohibition on display of red flags as an emblem of "opposition to organized government"); Milwaukee Mobilization for Survival v. Milwaukee City Park Comm'n, 477 F. Supp. 1210, 1218 (E.D. Wis. 1979) (striking down prohibition on display of flags without written permission of a Park Commission).

"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 and in fact succeeding in forcing the Plaintiffs to remove their flags from the Park. In this regard, the Court finds the Defendants claim that they acted reasonably because the flags exceeded size limitations established in 36 C.F.R. S 7.96 et sea. unavailing. The Court has not discovered any provision in section 7.96 that limits the size of flags displayed in the Park. Indeed, the regulations appear to contradict the Defendants' claim, since the regulation does specifically mandate that the "Small Group" exemption which the Plaintiffs assert applies to their group "does not restrict the use of portable signs or banners," a category which appears to encompass the Plaintiffs' flags. 36 C.F.R. S 7.96(g) (vii)(E). Perhaps the Defendants have in mind section 7.96(g) (x) (B), which places size restrictions on stationary signs. In that case, it is unclear whether this provision even applies to flags.

Assuming arguendo that the sign-size limits do apply, the Court finds that the Defendants have not provided sufficient evidence that the Plaintiffs' flags actually exceeded these size limitations, The Defendants only "proof" supporting this proposition is Judge Green's Order referred to above. However, the Order does not make a finding of fact that the present Plaintiffs' flags were too large. Instead, Judge Green notes only that the "defendants contend that the flags were seized because they were affixed to signs~ that were too large. Order, Oct. 12, 1990, Civ. No. 88-3130, p. 1 (emphasis supplied). Such bare-bones allegations do not suffice to contradict the specific factual allegations presented in the Plaintiffs' Amended Complaint." Order, pgs. 19, 20 (footnote omitted).

Assuming plaintiffs have accurately understood the foregoing, they agree the Court's reasoning is accurate and correct. However, as specified in the questions below, those parts of the April 12th Order which appear to run contrary to the foregoing strongly suggest either that plaintiffs actually don't understand anything, or that the Court has erred in reading the complaint.

HAS THE COURT ERRED IN ASSESSING THE COMPLAINT?

With all due respect, plaintiffs must suggest that the Court either fails to apprehend the nature and circumstances of the complaint, or, by just turning a blind eye to the specifically detailed points contained in plaintiffs' three motions for sanctions, has construed the facts in a light most favorable to defendants, which would be an error.

1. The Court held:

"The Plaintiffs also assert ... 36 C.F.R. ง 7.96 et seq. .... is unconstitutionally vague...." Court's Memorandum, April 12, 1005 ("Memo"), pg. 2.

Plaintiffs alleged that the regulations were arbitrarily ENFORCED. After re-reading the complaint, the amended complaint, and performing numerous mechanical word searches for the words "vague" and "vagueness," plaintiffs are certain that they did not raise any constitutional challenge to any regulation.[2]

2. The Court held,

"Plaintiffs have not specified that they were engaged in expressive activities at the time of the Officers' alleged actions (kicking, prodding, banging on signs). Indeed, it is notable that while other portions of the Plaintiff's Complaint are very fact specific, the Plaintiffs do not describe with any specificity what activities they were engaged in when the officers cited them with violating the camping provisions in 36 CFR 7.96(i)." (Memo pp. 16-17.)

Plaintiffs' whole point is that they have a "right" to continue maintaining the "continuous presence" which they have been maintaining since 1981, AND that is what they were doing at

[2 See, e.g., "At the outset of the January 6th hearing William Thomas, who spoke on behalf of all Plaintiffs, stated that Plaintiffs were not challenging the validity of the regulations at issue, but only the manner in which they were being enforced." Proposed Order to Dismiss for Frivolity, January 11, 1995, pg 3.]

all times at issue in this complaint. E.g., Motion to Reschedule Preliminary Injunction Hearing, "Identity Crisis," pg. 4, etc. [3] Also, regardless of allegations concerning the "camping" regulation, threatening and assaulting people or property are self-evidently grounds for legal action. Pounding on the sign qualifies.

3. Plaintiffs' biggest problem is that the Court has apparently re-written the complaint to state a claim which plaintiffs would not have attempted to bring. Plaintiffs believe it is an error for the Court to pare the complaint to a theory of action which plaintiffs consider frivolous.

"(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).

This complaint was brought under the theory evolved under the Civil Rights Act of 42 USC 1983 et. seq. In plaintiffs' opinion the Court has redrafted the complaint along the lines of an Administrative Procedures Act complaint, thus limiting inquiry to such a narrow scope that proving a violation of 42 USC is rendered impossible.

3. The Court held:

[3 "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 7.96 (g)(1)(i).

In fact, as recently as March 5, 1985 defendant Robbins explicitly claimed that the Park Service had 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.]

"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." (Memo p. 4; also at p. 11 and p. 16.)

Nowhere does the Complaint allege that any officers kicked or prodded the plaintiffs. The officers kicked and prodded others similarly situated to plaintiffs, and banged on the plaintiffs' signs with no probable cause for any threat. The issue at hand is the officers' malicious conduct, not plaintiffs' guilt or innocence. This is not a criminal trial, and plaintiffs are not defendants. This was clearly stated in the Complaint and Amended Complaint.

4. The Court held,

"First, Plaintiffs have failed to indicate with sufficient specificity to what extent Defendant Robbins was responsible for supervising the wrongdoers... The Complaint does not charge that Robbins was responsible for training or overseeing Officers O'Neill and Keness." (Memo p. 9-10.)

Plaintiffs believe that the Court has misplaced the burden. Plaintiffs have "alleged" Mr. Robbins' had "supervisory responsibility." E.g., Amended Complaint, Count 6. Since the allegations must be "taken as true," they have met that burden.

Although they feel they have met the requisite pleading standards, [4] plaintiffs submit U.S. Park Police Operations Division Memorandum No. 14 (December 6, 1982) which states:

"The enforcement of these regulations in which the activity

may be a part of a First Amendment expression should be

delayed until consultation with a supervisor and a

[4 If Mr. Robbins didn't have "responsibility," in light of the allegations, defendants have the burden of establishing that he doesn't have the alleged responsibility.]

representative of the Solicitor's Office...."

5. The Court held,

"Plaintiffs have failed to plead with specificity how Defendant Robbins acted with gross negligence." Memo, pg. 10.

Perhaps the Court has overlooked the fact that among plaintiffs' jurisdictional authorities are งง 42 USC 1985(3) and 1986.

"For purposes of (42 USC 1985(3)), a defendant is personally involved in the acts of his subordinates if he had knowledge of conduct, and consented to it; he need not have taken part." Alvarez v. Wilson, 412 F. Supp. 137.

6. The Court has not ruled on Plaintiffs' Motion to Strike Randolph Myers' letter. Filed February 6, 1995. Mr. Myers' letter "responds to (plaintiffs') letter to Richard Robbins dated November 10, 1994," and accused plaintiffs of having illegal flags.

7. The Court apparently also overlooked Plaintiffs' Notice to the Court (February 23, 1995) in response to Mr. Robbins' letter of February 23, 1995, which threatened plaintiffs with "appropriate law enforcement action by the United States Park Police."

8. The Court held,

"The Plaintiff has not provided factually specific allegations that Officer O'Neill acted without probable cause to arrest the Plaintiff (for disorderly conduct) (Memo p. 13) ... nor have the Plaintiffs claimed that Officer O'Neill acted in bad faith." (Memo p. 14)

Plaintiffs respectfully disagree, and suggest that the Court has either (1) decided the issue for Officer O'Neill, by viewing the facts in a light most favorable to him, or (2) essentially holds that an officer cannot be held accountable for an unlawful

"disorderly conduct" arrest under any circumstances.

"(T)he threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, and threats of prosecution under color of the statutes, to harass appellants and discourage them and their supporters from asserting and attempting to vindicate ... constitutional rights...." Dombrowski v. Pfister, 380 U.S. 482 (1965(.

9. The Court held,

"(As the Plaintiffs concede, 36 CFR 7.96(g)(5)(x)(B) prohibits the use of signs in the Park with several limited exceptions. It also prohibits the erection of 'structures' in the Park, including props and displays. 36 CFR 796.(g)(5)(x)(A)(4). The Plaintiffs have not asserted that their sign did not fall within either of these statutory bans." (Memo p. 14-15.)

Here the Court is simply mistaken. Plaintiffs have repeatedly claimed that their signs were within the limits (e.g., Complaint, Exhibit 3, Letter to Robbins, November 10, 1994).

"The lack of regulatory authority upon which the

Officers could rely regarding the flags renders this factual

allegation quite distinct from the other four." Memo, pg.

20, n. 7.

Moreover, plaintiffs have repeatedly claimed that the officers lacked regulatory authority to threaten plaintiffs for having the base of their sign "raised above the ground" (e.g., Motion to Reschedule Preliminary Injunction Hearing,, pg. 3, n. 2, see also, Motion for Sanctions, pgs. 17-18).

10. The Court held,

"Plaintiff has not alleged that the cooler related in any way to her First Amendment expressive activities, nor can the Court divine any other right implicated in this regard." (Memo p. 15.)

The error here is that the Court has taken the "cooler allegation" out of context.

"(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 Am. Jur. Second

Edition, Section II.

11. If plaintiffs have overcome the heightened pleading standard in any respect, money damages are appropriate.

"The Court finds that the Defendants' assertion in their Motion that all claims against the three individual Defendants must be dismissed if the Defendants prevail upon the arguments raised in their Motion is incorrect. If the Court finds the Defendants' positions persuasive, the Defendants Richard Robbins, Stephen O'Neill, and Andrew Keness will be relieved from liability for damages, but cannot be dismissed as Defendants with respect to the Plaintiffs' claims for declaratory and injunctive action by this Court." (Memo, p. 6.)

CONCLUSION

We hope the court will reconsider, and permit the complaint to go forward as plaintiffs initially framed it.

Respectfully submitted this 19th day of April, 1995.

______________________

William Thomas

2817 11th Street N.W.

Washington, D.C. 20005

202-462-0757

CERTIFICATE OF SERVICE

I hereby state that, on April 19, 1995, I delivered copy of the foregoing Plaintiff' Motion PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S APRIL 12, 1995 ORDER upon the office of the United States Attorney, 555 4th Street NW, Washington, D.C. ROOM 10-808, by HAND DELIVERY.