Memorandum - The Letter, Law, Conclusion

THE LETTER AND THE LAW

Since defendants claim that all the legal issues have been resolved, yet oppose the notion of dismissing THIS COMPLAINT as frivolous, it would seem plaintiffs' allegations must raise "genuine issues that properly can be resolved only by" trial? Anderson v. Liberty Lobby, 477 U.S. 317, 324 (1988); ; Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (affidavit of plaintiff brought up a genuine issue of material fact); Dombrowski v. Pfister 380 U.S. 479, at 482 (reversing dismissal "for failure to state a claim").

Again, Mr. Meyers is free to "believe" anything he likes. The Court, in viewing the photographs stapled to Mr. Meyers' letter, is also free to assume those photographs represent an accurate representation of the situation in November, 1994 (see, Motion to Strike, filed February 6, 1995, footnote 30, and even

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to agree that Mr. Meyers' edict is "the law." Daily, infra.

If this case had proceeded in a more conventional manner, Mr. Meyers and/or Mr. Robbins would have testified about their beliefs concerning flags and signs. Then, in the customary fashion, on cross-examination; plaintiffs would have been able to elect testimony to probe for a rational connection between a reasonable restriction, and the restrictions that Mr. Meyers' letter seeks to impose by decree.

As the Record stands, however, Mr. Meyers' letter might easily be read to cause an objective mind to wonder if he isn't actually "playing a game" by deleting rational and reasonable connections from both his equation, and "Actual Reality." Thomas, 864 F.2d 188, 193.

For counsel to represent the beliefs expressed in Mr. Meyers' letter as evidence of a "well-established regulatory framework" is at least as presumptious as if plaintiffs were to suggest the Court should accept Tom Dec. Exhibits 1-3 as "Truth."

Imagining Mr. Meyers' letter is intellectually honest, its only relevance to this case would still be conditional on the disputed facts of whether, in light of the "O'Brien test" (supra), there was 1) probable cause for the alleged actions of Officer O'Neill, et. al., and 2) whether defendants have engaged in a concerted effort to exercise totalitarian police state tactics under color of valid regulations, with the intent to deprive plaintiffs of various rights, privileges and immunities which defendants knew or should have known were guaranteed unde

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the Constitution of this nation, with the unexpected side effect of causing the death of Marcelino Corneil. The allegations of this complaint concerning the allegedly lethal enforcement policy of the "camping regulation, indicate the importance if this principle:

"The right to speak freely and to promote diversity of ideas and programs is ...
one of the chief distinctions that sets us apart from totalitarian regimes." Terminiello
v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990);
Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S.
203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496
(1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S.
503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536,
551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S.
177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969);
Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

To be fair, assuming the Court does not strike Mr. Meyers' letter, particularly considering the important issues involved here, it should he submitted to a jury to study Mr. Meyers' photographs, and Mr. Robbins' regulation (attached hereto), and to weigh Mr. Meyers' testimony, before any final determination is made on the question of whether Mr. Meyers' rationalizations are, in the fact finders opinion, "narrowly tailored to further a substantial governmental interest ... not intended to suppress freedom of expression." See, O'Brien, supra; see also, (First) Motion for Sanctions, footnote 14, filed January 24, 1995.

Hence, as Mr. Meyers' expression of belief betokens,

"the ultimate issue in the present case is (defendants') subjective state of mind."
Thomas v. United States, 557 A.2d 1296, 1300 (substituting).

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Claims raising issues of intent, good faith, or other subjective feelings, are ordinarily best reserved for resolution by a trier of fact. See, White Motor Co. v. United States, 372 U.S. 253 (1953).

"(A) law enforcement officer may allege and prove in defense his subjective good
faith belief that his conduct was lawful and the objective reasonableness of
his belief under the circumstances." Glasson v. Louisville, 518 F.2d 899, 909, cert denied,
423 U.S. 930, citing Butler v. United States, 365 F. Supp. 1035, 1045.

The complaint alleges that Marcelino Corneil was kicked and jabbed by Officer O'Neill , under color of the camping regulation. Officer O'Neill may believe in his heart that he was right, but assaulting people is wrong under any law. two wrongs don't make a right, and Marcelino was wrong individually, but abuse of police force is wrong on a far broader level.

On the strength of the foregoing discussion it is likely that plaintiffs will prevail on the merits of the case, and therefore the Court reconsider and should grant plaintiffs' Application for a TRO.

CONCLUSION

Upon the foregoing reasons, the Court should hold, (1) defendants shouldn't have done it, and (2) conduct a hearing to determine whether Rule Eleven Sanctions should be imposed. Respectfully submitted this 9th day of February, 1995,


___________________________________
Ellen Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757

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