Stare Decisis

STARE DECISIS

But, change being inevitable, even fundamental principles of First Amendment proportions are subject to human tinkering.[6]

[6 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) J. White for the majority (noting "no need to disagree" with Abney "that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment); Marshall and Brennan dissenting from the remainder of the majority opinion. Cf. Shepard's Citations, for a more accurate understanding of CCNV's landmark stature.]

3

For years plaintiffs have claimed:

"(they have) been repeatedly arrested, beaten, harassed and otherwise mistreated by
the police for their activities." Thomas v. United States, 557 A.2d 1296, 1297 (1989).

In a very real sense plaintiffs agree that the instant complaint faces an abuse of official authority which, over the years, many clear thinking people have called a "game." E.g.:

"THE COURT: Let me ask you this ... hasn't it been one of those things where he gets
arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y'
conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus
'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on
that line.... (H)e is trying to comply with these regulations, and as you make them,
and as he gets arrested for them ... whatever you say do, he'll do."
"THE GOVERNMENT: He plays games.
"THE COURT: Well, I don't know who is playing a game really." United States v. Thomas,
USDC Cr. 83-0056, J. Bryant, July 7, 1983.

Defendants are also entirely correct in noting that plaintiffs have previously raised claims of police misconduct, and that (purely on factually untested legal interpretation), plaintiffs claims have not survived lengthy, drawnout Motions to Dismiss. Opp. TRO. pgs. 2, 3, 4, 33 lines, stare decisis argument. [7] Judge (then U.S. Federal Magistrate) Arthur Burnett, the only fact finder in the nation's judicial system to who ever considered any evidence on Record regarding plaintiffs claims of police abuse. Thomas v. United States, 696 F.Supp. 702, Magistrate's Memorandum, January 13, 1987; in this Record:

[7 By our tabulation stare decisis is defendants' longest (33 lines), if not sole, argument. But an academic question appears to challenge it: If stare decisis rules here, why don't defendants' move to dismiss under res judicata? Infra, footnote 15 for unresolved "significant constitutional questions."]

4

Motion to Recuse, filed January 9, 1995, Exhibit 2.

After listening to "the testimony taken upon deposition in the presence of the Magistrate of ten (government) witnesses in the case" (id. pg. 6), the Magistrate decided that there was "an incredible number of incidents stemming from these arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct" (pg. 8) "which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Id., pg. 14.[8]

In addition to the Magistrate's opinion, the cases cited by defendants left other unresolved FACTUAL questions. E.g., Thomas v. United States, 557 A.2d 1296 (1988); Thomas et. al. v. Reagan, et. al, 113 S.Ct. 2397, cert denied, (May 13, 1993), J White, dissenting; "in light of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 1160."

Regrettably, often when plaintiffs raised claims of police abuse it was under circumstances when they were defendants, so their factual claims evaded review on other legal grounds. E.g., Thomas, 557 A.2d 1296; Tom Dec. Exhibit 6, pg. 42.

Thus, it should be seen, Defendants' Opposition is grounded

[8 Plaintiffs note the Appendix attached to the Magistrate's Memorandum records 25 arrests and 14 convictions of Thomas (since 1982 Concepcion hasn't been convicted of anything that wasn't overturned on appeal). But, the Magistrate's count was mistaken, and the number of arrests is higher, while the number of convictions was only 7. Tom Dec, Exhibit 6, sentencing transcript United States v. Thomas & Thomas, USDC Cr. No. 87-(J. Richey), pg. 5.]

5

most firmly on established legal principle, which, in turn, is perched upon a void of factually unresolved issues.[9]

Stare decisis is a doctrine of policy, grounded on the theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed, though later found to be not legally sound. Whether previous holding of court shall be adhered to, modified, or overruled is within courts' discretion under circumstances presented by the case before it. See, Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 607.

[9 Although plaintiffs have emphasized the fact that they are not challenging the regulations, it should be noted that others have:

"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 and Brennan, dissenting, first and last paragraphs.]

6

For years defendants have escaped scrutiny by repeating,

"Indeed, similar claims of conspiracy and deprivation of First Amendment rights
brought by these plaintiffs have been rejected more than once. See Huddle v. Reaqan,
1991 U.S. Dist. LEXIS 7070 (D.D.C. 1991); Thomas v. United States, 696 F.Supp. 702
(D.D.C. 1988)." Opp. TRO, pg. 3; indeed, these exact same words are also at Defendants'
Motion to Dismiss, pg. 2, filed January 11, 1995.

At the risk of seeming unreasonably insistent, the only undisputed facts on the Record of THIS CASE are those contained in THE COMPLAINT. Moreover, it is physically impossible for any previous litigation to have made any determinations about the allegedly improper conduct which gave rise to THIS CASE, because the conduct alleged now hadn't happened then.[10]

[10 The Court should concentrate on the present and the future, not only because it's the forgiving thing to do, but also because it's obligated by law:

"If, for instance, a judge presiding over a retrial should state, based upon
facts adduced and opinions formed during the original cause, an intent to ensure
that one side or the other shall prevail, there can be little doubt that he or
she must recuse. Cf. Rugenstein v. Ottenheimer, 78 Ore. 371, 372, 152 P. 215, 218."
Liteky, et. al. v. United States, 92-6921 (March 7, 1994), 54 Crl 2182,
concurring opinion at 2187.]

So, with the Court's permission, plaintiffs will put the past behind us, and turn to address the issues at bar.