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' REPLY TO
DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO
RESCHEDULE THE PRELIMINARY INJUNCTION HEARING
On this premise plaintiffs have consistently pressed for an
objective consideration of the complaint. See generally,
Proposed Order for TRO, filed January 11, 1995.
II. JUDICIAL BACKGROUND
On December 22, 1994 plaintiffs filed an Application for a
Temporary Restraining Order, and the instant complaint. In an Order issued December 22, 1994 the Court set a TRO hearing for January 6, 1995, later explaining,
- "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 149, 161 (1803).
When the long awaited hearing finally arrived, plaintiffs stated that they had five eyewitnesses to the
events at issue present in the courtroom, and that Mr. Robbins,
the only government witness plaintiffs would need testimony from
for the TRO hearing, was seated at defense table.
Despite a generous fifteen-day delay to allow preparation of
its case against a TRO (ftn. 3, supra), the Government, through
counsel, stated it was "not ready" to put on witnesses. Counsel
merely argued that defendants had done "little more than ...
attempt to enforce the regulations governing demonstrators in
Lafayette Park." See,
- "In view of the import of the issues raised, the Court found that a short delay (before the TRO hearing would) afford the Government the opportunity to respond (and) was in the interests of justice and consonant with the Court's Duty." Order, January 11, 1995, pg. 2.
also, Motion to Dismiss, pg. 1.
The Court set a hearing on the preliminary injunction for
January 12, 1995. On January 11th the Court recalled that
"Plaintiff William Thomas represented that the Plaintiffs might
need additional time to perform discovery," 6Nad cancelled the
January 12th hearing.
Subsequently the Court ruled "it does not view th(is) matter
as frivolous." Order, February 8, 1995, pg. 8.
Optimistically, plaintiffs filed a Motion to Reschedule the
Preliminary Injunction Hearing. February 24, 1995. Defendants
opposed rescheduling the hearing, arguing they
- "should not be compelled to testify at any hearing that addresses the merits of the plaintiffs' claims." Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, March 10, 1995, pg. 1.
A. WHO IS TRYING TO AVOID RESOLVING THE MERITS?
Plaintiffs believe that defendants, unable to link the legal
arguments in their Motion to Dismiss to factual reality, have
devoted their pleadings to inventing legal fictions. For
[1 On January 27, 1995 the Court granted Defendants' Motion to
[2 Plaintiffs' (First) Motion for Sanctions tracked, point by
point and in the same sequence, each issue broached in
Defendants' Motion to Dismiss (January 11, 1995). Plaintiffs
Concepcion Picciotto and Ellen Thomas filed a (Second) Motion for
Sanctions (February 2, 1995). Plaintiffs' Third Motion for
Sanctions (February 9, 1995) addressed the arguments raised in
Defendants' Opposition to the Motion to Reconsider Denial of the
TRO (January 23, 1995). Plaintiffs' Reply to Defendants'
Opposition to Plaintiffs' Motions for Sanctions (filed this date)
finalized briefing on the issue of Sanctions.]
example, Mr. Myers' letter has no reason to be in the record of
this case, except to provide a post hoc basis for "heightened
pleading" and "official immunity" claims. Infra, pp. $$.
On January 27, 1995 the Court denied, without comment, but
"without prejudice," plaintiffs' First Motion for Sanctions. As
a result defendants still find themselves in a position to cause
further delays before an evidentiary hearing by arguing that
their motion to dismiss is pending, and they intend to file a
motion for summary judgment.
Plaintiffs believe that defendants' position amounts to
obstructing meaningful access to the fact finding system. Hence,
to insure that their First Motion for Sanctions was not
misconstrued by the Court, plaintiffs now address more directly
defendants' Motion to Dismiss.
Prior to considering the merits of defendants' clearly
articulated claims for dismissal, however, it is necessary to
examine defendants' (1) oldest and (2) longest contentions.
Defendants called attention to Thomas v. Lujan, 791 F.Supp.
321 (D.D.C. 1991). As an example of how defendants have evaded
judicial review of the merits in previous cases, plaintiffs
[3 Appended to Defendants' Opposition to Reconsider Denial of
the TRO was Randolph Myers' letter of January 20, 1995. Purely
on the strength of Mr. Myers' letter, defendants argue that
plaintiffs are "not in conformity" with regulations, because
flags must be "hand-carried," and the base of a sign must not be
"raised "more than six inches above the ground." However, their
position finds no support in the wording of the regulations, and
defendants fail to identify any legitimate Government interest
that would be served by imposing those limits. See, infra,
Flags; Catch 11; Catch 22; and Signs.]
presented transcripts of preliminary hearings in Lujan, March 3rd
& 4th, 1992. Motion to Reschedule Preliminary Injunction Hearing
(March 2, 1995), Exhibits 1 & 2. In Lujan defendants argued
plaintiffs' vigils could be removed under the theory that it is
"a lawful abatement of nuisance for the Park Police to go and
pull property out of Lafayette Park." Id. Exhibit 1, pgs. 8-9.
At this point plaintiffs' vigils should be construed as the
status quo. Plaintiffs deny being "a public nuisance." It is
defendants' burden to prove the contrary.