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. |
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL
RECONSIDERATION OF THE COURT'S APRIL 12, 1995 ORDER
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."
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.
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
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:
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. The Court held,
- "The Plaintiffs also assert ... 36 C.F.R. § 7.96 et seq.
.... is unconstitutionally vague...." Court's Memorandum, April 12, 1005 ("Memo"), pg. 2.
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
- "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.)
[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. 
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
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.
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
3. The Court held:
- "(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).
[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.]
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
4. The Court held,
- "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.)
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,  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
- "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.)
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,
Perhaps the Court has overlooked the fact that among
plaintiffs' jurisdictional authorities are §§ 42 USC 1985(3) and
- "Plaintiffs have failed to plead with specificity how
Defendant Robbins acted with gross negligence." Memo, pg.
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
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
8. The Court held,
- "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.
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
- "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)
"disorderly conduct" arrest under any circumstances.
9. The Court held,
- "(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.
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
- "(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.)
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,
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
- "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.)
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.
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.
- "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.)
2817 11th Street N.W.
Washington, D.C. 20005
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.