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' REPLY TO
DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO
RESCHEDULE THE PRELIMINARY INJUNCTION HEARING

I. INTRODUCTION

"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).

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,

"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.

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,

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.[1]

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.

III. DISCUSSION
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.[2] For

[1 On January 27, 1995 the Court granted Defendants' Motion to Stay Discovery.]

[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. $$.[3]

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.