Plaintiffs' Memorandum Continued

• "(A) police officer forcibly took a poster from a young woman peacefully standing on a public sidewalk and destroyed it. Although not every encounter between a citizen and a policeman warrants extended judicial scrutiny and review, the implications of this apparently inconsequential incident raise important questions about the constitutional guaranty
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  of freedom of expression, and require us to determine the circumstances in which police officers may be required to respond in damages in an action brought (under) 42 USC Sections 1983 and 1985(3)..." Glasson v. Louisville, 518 F.2d at 901, cert denied, 423 U.S. 930.

• "The Park Service maintained ... that the storage rule interprets and restates the duties embodied in the existing regulation prohibiting camping.... We find this argument disingenuous and late....
  
  "The text of the Lafayette Park storage rule neither cites the camping regulation nor mentions the word 'camping'." Id.

restrictions, it could seem that defendants may be trying to win the Court over to the dangerous, and therefore impermissible, idea that an agency may interpret its regulations without regard to any

• "(A)ssuming Marcelino was 'camping,' Officer O'Neill had only three legitimate options (warning him, issuing a citation, or arresting Marcelino), and that when Officer O'Neill kicked Marcelino and jabbed Marcelino with a nightstick, Officer O'Neill exceeded his official authority and committed the criminal act of assault. Complaint, para.

[34 Marcelino was wrong, individually, for chasing Officer O'Neill with a knife, but Officer O'Neill's abuse of police force prefaced Marcelino's wild charge. The second wrong doesn't justify the first.]

• "Camping is not allowed in Lafayette Park, and sleeping is an indicia of camping. Thus, it is perfectly appropriate for any Park Police officer to awaken an individual who appears to be using Lafayette Park for living accommodation purposes (such as sleeping) and inform them

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

[38 True, plaintiffs had made similar claims of abusive enforcement practices in the past (e.g., Exhibit 6, pg. 42), but the factual aspects of those claims still remain unresolved, and it is precisely those unresolved questions that permitted Officer O'Neill to mistakenly believe he could kick somebody if he thought the person might be "camping." ]

• "Accordingly, whether a police officer must respond in damages for his actions is judged by whether his conduct was reasonable, considering all the circumstances, and by whether be acted in good faith. A police officer's stated good faith belief in the necessity or wisdom of the action is not dispositive of that element of the defense, but must be supported by objective evidence." Glasson v. City of Louisville, 518 F.2d 899, 909 (9th Cir 1975), Peirson v. Ray, 386 U.S. 547 (1967); Monroe v. Pape, 365 U.S. 167; Scott v. Vandiver, 476 f.2D (4th Cir 1973); Rodriques v. Jones, 473 F.2d 599 5th Cir 1973); Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir 1972).

unconstitutional. [39]

[40 Defendants incorrectly represent, "Mr. Corneil is not a plaintiff and the plaintiffs obviously have no standing to raise a claim relating to Mr. Corneil." Deft's Reply pg. 10. Plaintiffs do not attempt to make claims on behalf of Mr. Corneil. Plaintiffs merely assert that the harassment of Mr. Corneil prior to his death is routine, albeit impermissible, police policy, and it is the same type of harassment, at the hands of the same agents, to which plaintiffs, similarly situated to Mr. Corneil, are routinely subjected. That Mr. Corneil erupted and died as a result of this incident of police abuse, is of proximate concern to plaintiffs. Supra, ftn. 39. ]

[41 Even more coincidentally this is the very same "camping regulation" Magistrate Burnett identified as the one plaintiffs claimed various officers had used as a pretext for assaulting them. Motion to Recuse (January 9, 1995), Exhibit 3, pgs. 9, 10. As if that weren't coincidental enough, the "Officer Haines" accused of using the same regulation as a pretext for assaulting plaintiffs on a separate occasion (id. pgs. 11, 12), is the same Officer Haines pointedly criticized by Judge Green in reference to the same "camping regulation." Exhibit 3, hereto, pg. "1021."

not challenge the validity of the "camping" regulation, respected authorities have raised significant factual and practical questions pertaining to the wisdom of the rule.

• "The Court's disposition of this case is marked by two related failings. First, the majority is either unwilling or unable to take seriously the First Amendment claims advanced by respondents. Contrary to the impression given by the Majority, respondents are not supplicants seeking to wheedle an undeserved favor from the Government. They are citizens raising issues of profound public importance who have properly turned to the courts for the vindication of their constitutional rights. Second, the majority misapplies the test for ascertaining whether a restraint on speech qualifies as a reasonable time, place, and manner regulation. In determining what constitutes a sustainable regulation, the majority fails to subject the alleged interests of the Government to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.
  
  (Facts omitted.)
  
  "The political dynamics likely to lead Officials to a disproportionate sensitivity to regulatory as opposed to First Amendment interests can be discerned in the background of this case. Although the Park Service appears to have applied the revised regulations consistently, there are facts in the record of this case that raise a substantial possibility that the impetus behind the revision may have derived less from concerns about administrative difficulties and wear and tear on the park facilities, than from other, more 'political,' concerns." CCNV, 486 U.S. 288, Justices Marshall, Brennan, dissenting, first and last paragraphs.

• "(C)ourts must be especially careful in scrutinizing (time, place, and manner) restrictions on first amendment expression that the government seeks to
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  justify on eye-pleasing grounds.... Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others to be more moderate and decorous - and, in consequence, less effective - in conveying their message." White House Vigil for the ERA v. Clark, 746 F.2d 1518, 1551; City Council v. Taxpayers for Vincent, 103 S. Ct. 2118, majority opinion, 2139, 2141.

• "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 1 Cranch 138, 163 (1803).

seek another, perhaps more technologically adept (hence "civilized"?) truth-seeking forum.

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