Plaintiffs' Reply to Defendants' Opposition

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.             |

PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS'
MOTION TO RECONSIDER DENIAL OF THE TRO

INTRODUCTION

On January 23, 1995, the U.S. Attorney's Office filed an Opposition to Plaintiffs' Motion to Reconsider Denial of Plaintiffs' Application for a TRO, or, Alternatively to Dismiss the Complaint as Frivolous. [1] Hereinafter, "Deft's Opp."

ISSUES AT BAR

Essentially the complaint contends:

"defendant Robbins and other defendants in supervisory capacity [2] have placed
freedom of thought and expression, plaintiffs, the general public, and Marcelino Cornel
in particular, in danger by failing to properly oversee a well-

[1 "In applying for a temporary restraining order, plaintiff bears the burden of providing evidence demonstrating:
  1. that he is likely to prevail on the merits;
  2. that he will suffer 'immediate [irreparable] harm within the next ten days unless injunctive relief is granted';
  3. that the issuance of an injunction will not substantially harm the other parties; and
  4. that the issuance of the injunction will not be adverse to the public interest.

Optic-Electronic Corp. v. United States, 683 F.Supp. 269, 270 (D. D.C. 1987), (emphasis in original), citing Washington Metropolitan Area Transit Commission v. Holiday Tours. Inc., 559 F.2d 841, 843 (D.C. Cir. 1977)." Opp. TRO. pg. 3, no argument, 13 lines. NOTE: number of lines included to facilitate collation and analysis of arguments.]

[2 Of course these "others" would include Mr. Randolph Meyers. See, "Plaintiffs' Motion to Strike Randy Meyers' Letter of January 23, 1995 (which did not yet exist on January 6, 1995) from the Record," filed February 2, 1995 (parentheses added).]

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armed police force,

although they knew, or should have known, of extra-legal conflicts by their subordinates
toward demonstraters and others in the Park." Complaint, pgs. 6-7.

ISSUES ON THE TRO

The Application was filed on December 22, 1995. In a complaint supported by declarations and documents, , plaintiffs claimed (among other things):

"Officer O'Neil's abuse of authority which preceded the shooting of Marcelino Cornie,
under the pretext of the minor ("camping") regulations, is a graphic demonstration
of the result of abuse of legal authority, and emphasizes the necessity for
this court to protect not only plaintiffs, but the liberty, welfare, and physical
well-being of anyone who happens into the abusive path of well-intentioned
power gone astray, and of society in general." Complaint, pg. 8.[3]

In an Order issued the same date the Court set a TRO hearing for January 6, 1995, explaining,

"in view of the import of the issues raised, the Court found that a short delay to
afford the Government the opportunity to respond was in the interests of justice and
consonant with the Court's duty." Order, January 11, 1995, pg. 2.

On January 6, 1995 the Court held a hearing on plaintiffs' Application for a Temporary Restraining Order.

At the hearing plaintiffs vigorously emphasized that they were not challenging the regulations at issue in this case,

[3 The TRO Application asked that the Court simply Order, "Defendants are hereby temporarily restrained from assigning Officers O'Neill, Keness, and X to Lafayette Park."
Defendants have not claimed reassignment of these officers would cause them any harm. It is undisputed that defendants have over 600 officers; defendants offer no reason to explain why they can't just reassign these three officers to other beats.
The proposed Preliminary Injunction asked the Court to Order that, "defendants shall not abuse their legal authority, or permit their subordinates to abuse their legal authority to the detriment of rights guaranteed to plaintiffs under the First, Fifth or Fourteenth Amendment rights."]

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which, plaintiffs observed, have repeatedly been held to be valid time place and manner limits on First Amendment activities. [4] Rather, plaintiffs stated, they were challenging the manner in which certain regulations were being enforced. I.e.,

"Even if it can be shown that the camping regulation had been passed directly from
the Creator of the Universe to Officer O'Neill, and even assuming that Mr. Corniel was
actually violating the camping regulation, if the evidence presented at trial establishes
that Officer O'Neill kicked and struck Mr. Corniel with a police baton, in kicking
and striking Mr. Corniel Officer O'Neill ignored due process, and committed the
criminal act of "assault." Proposed TRO, filed Jaunuary 11, 1995, pg. 9.

Plaintiffs stated that they had five eyewitnesses to the events at issue in the courtroom, and that Mr. Robbins, who was the only government witness plaintiffs would need testimony from for the TRO hearing, was seated at defense table. [5]

It is undisputed that Mr. Robbins

  1. bears ultimate responsibility for advising the Park Police on enforcement of the regulations,
  2. had notice of alleged police misconduct, but
  3. took no action in response to those allegations.

As Thomas noted in his oral representations to the Court on January 6th after AUSA Rider had made some imprecise blanket reference to "'sleeping' and 'camping'," Mr. Robbins is the person best able to explain the Administrative Policy on the

[4Defendants apparently agree. See, cases cited, Defendants' Motion to Dismiss, pg. 2.]

[5 Appended to the Complaint was a Declaration of William Thomas; attached to Thomas' Declaration as Exhibit 1 was a letter (and certified mail return receipt), from Thomas to Robbins, detailing problems with the manner in which Officer O'Neill had tried to apply the "sign" regulation.]

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enforcement of the "camping" regulation. [6] By virtue of his expertise Mr. Robbins can speak authoritatively to issues like the legality or illegality of "sleeping" in Lafayette Park. Thus, Mr. Robbins is the one able to shed light on, for example, the relevant question of whether the activity which attracted Officer O'Neill's attention to Marcelino was "well established" as "using the area for living accomodations."

If evidence at trial were to show that Officer O'Neill had indeed assaulted Marcelino on December 20th, it would be Mr. Robbins who could tell the Court whether or not Park Police "camping" enforcement policy authorized that assault.

Particularly in places where defendants' are forced to try on so many "IF's," (e.g., (Def's Motion to Disnmiss, Memo, pg. 8)) Mr. Robbins is the man to see. He's the one who wrote the regulations, [7] and he's the man who knows about the well-established nature of Agency Enforcement Policy.

WHO IS TRYING TO AVOID WHAT?

The Government, through counsel, stated it was "not ready" to put on witnesses. Instead counsel merely argued that defendants had done "little more than ... attempted to enforce the regulations governing demonstrators in Lafayette Park." See also, Deft's Motion to Dismiss, pg. 1.

[6 Federal Register, Vol. 47 No. 108, pg. 24299, 2nd col., June 4, 1992, 3rd col, last sentence.]

[7 Federal Register, Vol. 51 No. 43, pg. 7556, 2nd col., March 5, 1985.]

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The Court then asked plaintiffs whether they still wished to put on witnesses.

At the hearing Thomas pointed out:

(1) counsel's representations regarding the incidents in question were "inaccurate,"

(2) but shouldn't matter because
[a] the Court couldn't accept counsel's argument as "fact" anyway, and
[b] the only "evidence" on Record were th declarations and evidence attached to
the complaint. Therefore, plaintiffs stated, they couldn't understand how the Court
might do other than to grant them a TRO,

(3) so it was probably not necessary for plaintiffs to put on witnesses.

However, plaintiffs also noted that if the Court felt at all inclined to credit defendants' factually unsupported arguments, then plaintiffs did indeed want to present their witnesses.

"For the reasons articulated from the bench, the Court found that the Plaintiffs had not met the requirements for a TRO..." Order, January 9, 1995, pg. 2. The Court also consolidated the trial with a hearing on the merits and set a hearing date for January 12, 1995.

RESOLUTION OF WHAT MERITS?

First, on January 11, 1995, defendants moved to dismiss: "In their complaint
Plaintiffs assert little more than that Park Police officers have attempted to
enforce the regulations governing demonstrators in Lafayette Park." Defendants'
Motion to Dismiss, Memorandum, pg. 1.[8]

Just twelve days later, defendants do an apparent about face, accusing plaintiffs of trying to:

[8 On January 11, 1995 the Court also cancelled the hearing "on the merits," which, by Order of January 9th, had been scheduled for January 12th.]

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"avoid a resolution of the merits of their complaint .. plaintiffs' alternative
request to dismiss their complaint as frivolous is yet another attempt to avoid this
Court's resolution of their complaint." Deft's Opp. pg. 1.

Suddenly defendants see such great merits in the complaint that they feel it necessary to accuse plaintiffs of pursuing pattern and practice of avoidance:

"(p)laintiffs' first attempt ('to avoid a resolution of the merits of their complaint')
was their Motion to Recuse, which this Court correctly denied on January 6, 1995."
Def's Opp. 1-2, footnote 1. [9]

Based solely [10] on the fact that when the long-awaited TRO hearing finally rolled around -- at last presenting the opportunity to resolve some merits -- defendants still weren't ready to present any witnesses or evidence to supplement their written and oral excuses.

Even a slight suggestion that it may be plaintiffs who are trying to "avoid resolution of the merits of their complaint" could seem dangerously unreasonable. Based on the January 6th hearing alone a strong argument might be made that if anyone is trying to avoid resolution of "the (factual) merits" of this

[9 Plaintiffs believe the record in this case bears witness to a consistent, pronounced attempt by plaintiffs toresolve this matter as quickly as humanly possible. If plaintiffs are intentionally trying to avoid anything, it is only resolution of their complaint BEFORE the Court allows the presentation of evidence, or subjects counsel's excuses to the minimal fact-finding process necessary before an objective consideration of "the (factual) merits" can possibly begin. See generally, Proposed Order for Temporary Restraining Order, filed January 11, 1995.]

[10 Owing to the Court's steadfast refusal to relinquish control of this case, further discussion of recusal might only complicate resolution of the merits.]

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case, it is actually defendants.

LAUNCHING AN AD HOMINEM ATTACK

Finally (in order of importance), defendants' most persuasive argument may be the "ad
hominem": "The plaintiffs launch an ad hominem attack on this Court..." Deft's
Memo, pg. 1, compare, Second Declaration of William Thomas, February 9, 1995.

Alluring as this argument may appear on its face (defendants fail to specifically identify the "ad hominem attack" they imagine, so plaintiffs are forced to speculate), [11] a little reflection seems to indicate it is rooted in an inconsistent logic, that it mistakes freedom of choice for an attack.

BUT, THAT'S SILLY!

To construe plaintiffs' Proposal as a personal attack is a mistake. With any fairness, counsel would have noted, plaintiffs did urge the Court to make the most reasonable decision. See, Motion to Reconsider, filed January 11, 1995. [12]

Hence, with respect to freedom of choice, to assist in the expeditious execution of, if not justice, at least process, for the Court's convenience plaintiffs framed two Proposed Orders,

[11 Coming, as it does, with references to both plaintiffs' Motions for Reconsideration of the TRO and the Motion to Dismiss for Frivolity, plaintiffs would guess defendants' "ad hominem" alludes to the Proposed Order to Dismiss for Frivolity.]

[12 Plaintiffs took exception to the unusually lengthy interval between filing of the Application and the TRO hearing. Then plaintiffs felt it was not quite proper for them to have been precluded from putting on witnesses, or for defendants to have prevailed against plaintiffs' Application when all they could say was, "We're not ready."]

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crafted with considerable care to achieve as near perfect accuracy as might reasonably be expected of pro se plaintiffs. [13]

CONCLUSION

As seen from the foregoing discussion, since the only

"evidence" on Record were the declarations and evidence attached to the complaint, if
only by default (supra, pgs 4 & 5), plaintiffs have met the requirements of a
TRO (footnote 1, supra), and the Court should grant the relief sought. Therefore, the
Court is encouraged to:

[a] reconsider its denial of the Temporary Restraining Order, or

[b] rescind its Order of Consolidation pursuant to Rule 65(2), set a date for
Preliminary Injunction hearing and promptly schedule depositions, or

[c] whatever other option the Court might imagine will expedite justice to the
situation.

In the sense that God really is Great, and life on the material plane is quite mundane
by comparison, whatever the Court

[13 Plaintiffs would gratefully welcome specific correction where they may have fallen short of factual accuracy. Arguably, that sort of factual critique is the purpose of the Rules:

"The law of evidence presupposes that in judging the claims of the litigants,
it is important to discern the true state of affairs underlying the dispute.
It proceeds on the premise that the way to find the truth is to permit the parties
to present to the court all the evidence that bears on the issue to be decided,
Fed. R. Evid. sections 401-901 (b)." McCormick on Evidence, 3rd Edition
(4th reprint, 1991), page 540. See also Fed. R. Evid. 611 (a); see Pointer v.
Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.d 923 (1965); Fed. R. Evid.
406 (b), Alford v. United States, 282 U.S. at 692, 51 S.Ct. at 219.]

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decides is (plaintiffs finally agree) okay. (Caveat

emptor, qui ignorare non debuit quod jus alienum emit; see also Matthew 7:2.)

God loves us all. Respectfully submitted this 13th day of February, 1995,

________________________________
William Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757

CERTIFICATE OF SERVICE

I hereby state that, on February 13, 1995, I served a copy of the foregoing Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO upon the office of Assistant United States Attorney, 555 4th Street NW, ROOM 10-808, Washington, D.C.

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