Memorandum - the Letter, Signs

THE LETTER

Which brings us flush up against Mr. Meyers' "didn't know, or shouldn't have known" letter, the very nearest defendants could possibly draw to approximating a "sphere of official responsibility" to blanket the constitutional rights allegedly violated by defendants.

"'If the law was clearly established, the immunity defense ordinarily should fail,
since a reasonably competent public official should know the law governing his
conduct....' (T)he Government actor is presumed to have known about it, unless he can
bring forward undisputed facts establishing that because of extraordinary
circumstances he neither knew nor should have known of the unlawfulness,
summary judgment in his favor must be denied." Hobson v. Wilson, 737 F.2d 1, 25 (1984),
citing Hallow v. Fitzgerald, 457 U.S. 800, 818.

Necessarily, IF defendants just whipped up the "support and safety requirement" standard because they didn't have anything else to say, they had to come up with something to breathe life into the hollow shell of their "well established" argument. Plaintiffs submit, this is where Mr. Meyers' letter comes into the picture, hoping to whitewash the missing "well established" clause, without which Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO (not to be hypercritical) wouldn't be worth reading.[18]

One problem for defendants: how can a letter, barely two weeks old, bear testament to a "well established framework?"

"We are ... spared the need for any extended 'forum

[18 Thus, unless the Court denies Plaintiffs' Motion to Strike, it would seem the Court must grant the instant motion.]

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analysis' in this case, as no

one disputes that Lafayette Park is a 'quintessential public forum,' see White House
Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly, 'the government's ability
to permissibly restrict expressive conduct [there] is very limited.' United States
v. Grace, 461 U.S. 171, 177; see Hague v. CIO, 307 U.S. 496, 515-16." Id., 88.

If Mr. Meyers sincerely believes his opinions are reasonable that doesn't prove his opinions are correct, or that a jury would agree with him:

"The trial court properly excluded expert testimony which was proffered to
prove the (well-established) state of the law and to support their claim of absence
of willfulness. The expert's testimony had little probative value on the issue of
defendants' states of mind at the time they acted because these was no evidence that they
had relied on his opinion at the time they acted. United States v. Daily 756 F.2d 1076,
1083-84; cert denied, 106 S. Ct. 574. (1985)." Moored Rules of Evidence Pamphlet,
pg. 94 (1990), (parentheses substituting for "confusion on the").

THE SIGNS AND THE LETTER

Another well established problem:

"We believe," Mr. Meyers writes, "that your signs, as
presently constructed, fail to conform to the regulations."

Again, deeply committed to freedom of thought and expression, plaintiffs vigorously support Mr. Meyers' right to believe and say whatever he likes. Yet, dictionaries (and other well respected sources) show that "know" (JOHN 8: 32) is quite different than "believe." 2 THESSALONIANS 2:11; see also, "perjury".

If Mr. Meyers' only "believes," what reason is there to assume his subordinates "knew" that the sign was illegal? See, United States v. Daily 756 F.2d 1076, 1083-84, infra, pg. 16.

True, plaintiffs have complained elsewhere because

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defendants wouldn't give the Court any facts. But still there is not the slightest hint that Thomas' signs violated the size reguirements by just one millimeter. Instead of a clearly specified violation, the letter adds something new, i.e.:

"(I)f the plaintiff has used supports to create a structure rather than to meet
support and safety requirements, his sign violates the regulations." (Def's Memo,
pg. 8, emphasis added.)" Plaintiffs First Motion for Sanctions, pg.

The only apparent reason Mr. Meyers gives for his belief that Thomas' signs "do not comply with the regulations" is, "it appears that (Thomas had) constructed a raised platform that isat least six inches off the ground." Id. However,

"an interpretive rule explains an existing requirement, it
does not impose an 'additional' one." United States v.
Picciotto, 875 F.2d 343, 348 (1989).

If the regulation were intended to prohibit the base of a sign from being "raised off the ground," it is well established that the regulation must say that.

It would be appropriate now for the Court to consider earlier Park Service attempts to subvert the First Amendment prior to paying lipservice to the APA.

"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'." Picciotto, supra, at 348.

Analogously, the sign regulation cannot specify how high the "base" may, or may not, be "raised above the ground," simply because it neither mentions any of those words, nor does it make

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any attempt to define a specific configuration to which sign braces must conform. [19] If the regulation had been intended to limit design of sign support systems it needs to say that. It doesn't. Attached hereto.

"The rule that (defendant) was convicted of violating is a substantive regulation, subject
to the APA's procedural requirements but adopted in their absence. Before a person
is threatened with jail for such a violation, the government must ensure that the
rule itself is not in violation of the law." Picciotto, st 349.

Because Mr. Meyers' letter contains not a single thought about any "significant Government interest," [20] or "REASONABLE time, place and manner restrictions," it could seem that defendants are trying to win the Court over to the dangerous, and therefore impermissible idea that an agency may interpret its' regulations without regard to any

"satisfactory explanation for its action including a 'rational connection
between the facts found and the choice made." Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168.[21]

[19 Nor does the regulation forbid people from sitting on sign bases. Nor does Mr. Meyers' explain why he feels the signs which he finds offensive are any less, or not more, aesthetically pleasing than the signs of which he approves.]

[20 Opp. TRO (pg. 5, tabulation, 15 lines) alludes to a bunch of significant Government interests. Still, taken together with everything else in the record, Defendants' Opposition and Mr. Meyers' letter do nothing to link any of those legitimate interests to plaintiffs' activities.]

[21 We can't assume that defendants cite "Thomas v. Lujan, 791 F.Supp. 321 (D.D.C. 1991), aff'd (per curium) 1993 U.S. App. LEXIS 4902 (D.C. Cir. January 29, 1992)," to suggest that stare decisis has deleted the requirement for rational connections between facts shown and actions taken. So the cite is perplexing. As the Court may recall, Thomas v. Lujan dealt with a "three cubic foot storage" regulation. Plaintiffs note, there is no dispute about "storage" in the instant matters. ]

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Conversely both Mr. Meyers and his subordinates should have known about the First Amendment, because it is well established.

"(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 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.[22]

Plaintiffs wouldn't be surprised if counsel disagrees, but it's a well-established literal fact that:

"Symbolic expression of this kind may be forbidden or regulated IF the conduct itself
may constitutionally be regulated, IF the regulation is narrowly tailored to further
a substantial governmental interest, and IF the interest is unrelated to the suppression
of free speech. United States v. O'Brien, 391 U.S. 367, 376 (1968)." CCNV,
486 U.S. 288, __ (EMPHASIS added).

[22 Here plaintiffs meet THE THIRD REQUIREMENT for a TRO, if only because defendants' make no attempt to explain how "the issuance of an injunction will ... substantially harm the(m)," since it would still leave them free to unleash the offending agents on other segments of the public. ]