Motion for Sanctions...
Defendants Contentions

A. DEFENDANTS' CONTENTION THAT "PLAINTIFFS' CLAIMS
AGAINST ALL OF THE DEFENDANTS IN THEIR INDIVIDUAL
CAPACITIES MUST BE DISMISSED FOR FAILURE TO STATE A
CLAIM" IS NEITHER WELL GROUNDED IN FACT,
NOR WARRANTED BY EXISTING LAW.

The threshold of taking defendants' Motions for Dismissal seriously requires scrapping well-established legal axioms. [4]

The factual allegations in this case fall into five categories:

the arrest of Mr. Thomas (Am. Com. pg. 3);
threats of arrest to Mr. Thomas under the baseless pretext that one of his signs failed to comply with the applicable regulations (Am. Com. paras. 6, 7);
threats of arrest to plaintiff Picciotto under the baseless pretext that two flage, allowed by a valid Park Service permit, violated the applicable regulations (Am. Com. paras. 11, 13, 14, 15));
warnings to plaintiff Picciotto that a cooler violated the applicable regulations (Am. Com. pg. 19); and
the manner in which defendants enforced the "camping" prohibition.

The U.S. Attorney misrepresents plaintiffs' claims of "threats of arrest" as "warnings." Defs' Memo, pg. 3. This misrepresentation rests on nothing more than the accusation that plaintiffs were guilty of violating the regulation which the officer is alleged to have "acted under color of." Whether "attempting to enforce the regulations" (Def's Motion, page 1) is

[4 At this point of the litigation plaintiffs cannot possibly be presumed "guilty" of violating any regulations by virtue of two axioms, they are entitled to (A) "all favorable inferences which may be drawn from the allegations" (Scheuer v. Rhodes, 416 U.S. 232, 236; Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D. C. Cir. 1986)), and (B) a "presumption of innocence," pursuant to the Fifth Amendment.]

equivalent to "attempting to subvert Ccnstitutional rights under color of regulations" is a factual matter requiring the examination of testimony, evidence and subjective states of mind.

For example, plaintiffs have plainly written that they

"are not challenging Officer O'Neill's duty to enforce the 'camping' regulation. Instead plaintiffs assume the position that, assuming 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. 20." Proposed Order to Dismiss as Frivolous, page 8.

It is axiomatic that "...a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 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").

Unless this complaint and (in Marcelino's case) human life are frivolous, some questions deserve sober thought: "Did or didn't Officer O'Neill assault Marcelino?" - "Was or wasn't Marcelino 'camping' in Lafayette Park on the morning he was killed?" - "Did Officer Keness threaten to arrest Concepcion for flags flying under a Park Service Permit?" - "If he did, what animated his intimidation?" If those questions deserve sober thought, perhaps defendants' Motion is the frivolous one.

1. PLAINTIFFS' BIVENS CLAIMS AGAINST
DEFENDANT ROBBINS, ALLEGING
SUPERVISORY NEGLIGENCE CAN BE DISMISSED
ONLY IF MR. ROBBINS IS TOTALLY IRRESPONSIBLE.

It is uncontested that as part of his official duties Mr. Robbins has the responsibility of advising the Park Police on enforcement of the applicable regulations, and particularly in cases involving First Amendment exercise.

It is also uncontested that a certified letter, [5] received by Mr. Robbins' office, complained about threats made to Thomas by Officer O'Neill, which Mr. Robbins simply ignored.

Defendants do not pretend Mr. Robbins' "supervisory responsibility" is inappropriate or unessential, or that he performed it. Rather, they just insist plaintiffs cannot hold Mr. Robbins legally "responsible" for failing to perform his "official duties." Def's Memo, pg. 6.

Plaintiffs' claim against defendant Robbins is based squarely upon evidence of an affirmative link between the occurrence of various incidents of police misconduct and Mr. Robbins, which could easily indicate the adoption of a plan or policy by Park Police which was at least tacitly approved, if not authorized or

[5 Defendants apparently wish to attach some unspecified significance to the idea that "Mr. Thomas praised Mr. Robbins for having 'consistently emphasized the need to balance First Amendment freedoms of speech and expression against the rights of . . . traditional recreational and aesthetic purposes.' Plaintiffs' Exhibit 1, at 2." Def's Memo, footnote 3. In fact, for what it's worth, Thomas was only repeating Mr. Robbins' own self-praise. See, Federal Register, Vol. 50, No. 161, June 4, 1982, pg. 33571, col. 3. Unfortunately, judging from Mr. Robbins' inaction, it begins to appear that the praise may be undeserved.]

concocted, by Mr. Robbins. Rizzo v. Goode, 423 U, S. 362 (1976); see also Popow v. City of Margate, 476 F. Supp. 1237, 1245 (D. N. J. 1979).

That Mr. Robbins (1) bears ultimate responsibility for advising the Park Police, (2) had notice of alleged police misconduct, but (3) took no action in response to those allegations is undisputed. Claims against Mr. Robbins should not be dismissed.

2. PLAINTIFFS' BIVENS CLAIMS AGAINST DEFENDANTS
ROBBINS, O'NEILL AND KENESS, BASED UPON
SPECIFIC, NON-CONCLUSORY ALLEQATIONS,
CANNOT LEGITIMATELY BE DISMISSED

Pursuant to 42 USC 1985(3), federal injunctive relief traditionally is presumed available against federal actors [6] commiting constitutional violations. Bivens v. Six Unknown Named Federal Narcotics Agents, 483 U.S. 388 (1971) See, Leatherman v. Tarrant County, 113 S. Ct 1160, 1162 (1993). Reuber v. United

[6 Defendants claim, "Officer X" (whom the Park Police refuse to identify) "... is not before this Court, because he has neither been named nor served." Def's Memo, footnote 2. That argument is disproven by Bivens, where "the agents were not named in petitioner's complaint," so the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the [petitioner]." Bivens, at 390, footnote 2.

Defendants don't try to deny "'Officer X' was involved in killing Marcelino Corniel." With consistent chutzpa, defendants purport that "factual allegations relating to 'Officer X' are completely unrelated to the plaintiffs' claims of arbitrary enforcement of the applicable regulations." Yet, they supply no reason to assume the shooting of Marcelino would have occurred if Officer O'Neill had not been kicking and jabbing Marcelino on numerous occasions, including earlier that morning (see Declaration of Ellen Thomas, para. 6). Hence, there is no support for claiming the "shooting" was "completely unrelated" to the "kicking and jabbing." ]

States, 750 F.2d 1039, 1061-63 (D.C. Cir. 1984).

"At trial, plaintiffs asserted that they were victims of three conspiracies to violate their civil rights, all actionable under 42 U.S.C. 1985(3) (Supp. V 1981). They alleged that each of these conspiracies violated their First Amendment rights.... The jury returned verdicts in favor of most plaintiffs on all three conspiracy claims." Hobson v. Wilson, 737 F.2d 1 (1984).

The Reuber Court also noted that on numerous occasions prior to Bivens, the Supreme Court had permitted suits for injunctive relief brought directly under the constitution for violation of plaintiff's constitutional rights, citing, Bolling v. Sharpe, 347 U. S. 497 (1954); Philadelphia Co. v. Stimson, 223 U. S. 605 (1912). The Court also cited Bell v. Hood, 327 U. S. 678, 684 & n.4 (1946). See also Jorden v. National Guard Bureau, 799 F.2d 99, 111 n. 17 (3rd Cir. 1986).

Our Court of Appeals has consistently explained, Bivens plaintiffs are held to a "heightened pleading standard" which requires plaintiffs "at the very least [to] specify the 'clearly established' rights they allege to have been violated with ... precis[ion]." Martin v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987), quotinq Hobson v, Wilson, 737 F.2d 1, 29 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084 (1985).

However, the heightened pleading standard only requires that a claimant allege, not prove, a Bivens claim prior to trial. By its terms 42 USC 1985(3) requires a plaintiff allege four elements: (1) a conspiracy (see Am. Com., Jurisdiction, pg. 1); (2) for the purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws (see Declaration of William Thomas in Support of the Complaint, paras 5 & 18; Declaration of Concepcion Picciotto in Support of the Complaint, para, 5);[7] and (3) an act in furtherance of the conspiracy (Am. Com., paras. 3, 6, 7, 11, 13, 14, 15); (4) whereby a person is either injured in his person or property or deprived of any right

[7 There is little question that "Section 1985(3) extended to purely political animus to reach conspiracies formed because a person 'was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist or because he was a Vermonter (quoting Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson, supra, at 16, n. 44.

"(S)everal circuits have ruled that politics and religion define such [class-based discriminatory animus that section 1985(3) requires]. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88 (discrimination on basis of political >affiliation constitutes class-based discriminatory animus); Ward v. Connor, 657 F.2d 45, 47-48 (discrimination against members of Unification Church), cert denied, 455 U.S. 907; Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 20 (discrimination based on political affiliation with racial overtones) modified on other grounds, 446 U.S. 754; Means v. Wilson, 522 F.2d 833, 839-40 (discrimination against supporters of insurgent candidate for tribal counsel presidency), cert denied, 424 U.S. 958;Glasson v. City of Louisville, 518 F.2d 899, 911-12 (discrimination against critics of the President), cert denied, 423 U.S. 930; Marlowe v. Fisher Body, 489 F.2d 1057, 1064-65 (discrimination against Jews); Action v. Gannon, 450 F.2d 1227, 1232 en banc (worshippers at predominantly White parish disrupted by Black civil rights workers); see also comment, Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977) ('[T]he legislative history behind section 1985(3) unmistakably LEADS to the conclusion that discrimination [on the basis of political affiliations or beliefs] was intended to be actionable.')." Hobson at 21 (parentheses in original).]

or privilege of a citizen of the United States. Am. Com. COUNTS 1-8.

Thus, plaintiffs have stated facts with enough particularity to demonstrate "who did what to whom and why." Dewey v. Universitv of New Hampshire, 694 F.2d 1, 3 (1st Cir, 1982) cert. denied, 461 U.S. 944 (1983).

3. DEFENDANTS' "FACTUAL" REPRESENTATIONS
CAN BE TAKEN SERIOUSLY ONLY BY TURNING
SENSIBLE JURISPRUDENCE UPSIDE-DOWN

Defendants' Motion is devoid of anything approximating a "factual" representation. Even with an unprecedented sixteen days to prepare for a TRO hearing, defendants still weren't ready to present a shred of testimony or evidence. Now, still without entering a single declaration or jot of evidence to support their "factual" assertions, defense counsel ventures to sway the Court with a Motion to Dismiss. This itself should be sanctionable.

Defendants certainly do not deny, and actually seem to concede, "that plaintiff William Thomas was arrested for disorderly conduct, but never prosecuted, thereby depriving him of his ability to exercise his First Amendment rights." Def's Memo, pg. 7. It is plainly alleged that Mr. Thomas was arrested without probable cause. The undisputed fact that the United States Attorney's Office declined to prosecute Mr. Thomas can only support plaintiffs' allegation of "no probable cause," and Thomas discussion concerning Mr. Aesfyza's signs is at least prima facie evidence of an impermissible interest in plaintiffs'

expressive activities. [8]

With respect to the arrest of Thomas, the only evidence on record shows (1) it happened, (2) Thomas says it was "without probable cause," (3) it was related to Thomas' expressive activities in the Park, and (4) it disrupted his freedom of expression. On the other hand, at best the U.S. Attorney has advanced uninformed hypotheses to counter the evidence; at worst, these uninformed hypotheses were intended to be subtle misrepresentations designed to mask defendants' misconduct.

4. EXCUSES FOR DEFENDANTS' PERSECUTION
OF PLAINTIFFS FOR THEIR SIGNS AND FLAGS
ARE NEITHER EVIDENCE, NOR WELL-GROUNDED IN FACT.

Even though everyone knows that a lawyer's arguments aren't "evidence," once again in addition to speculative argument Defendants' Motion offers only low-key, but transparent, misrepresentation to make its point.

Defendants state, "plaintiffs fail to describe the sign/structure beyond the conclusory assertion that it is a sign

[8 Defendants make no attempt whatever to demonstrate Thomas was engaged in disorderly conduct, or even deny that he was not disorderly. Defendants seem to forget the allegations must be construed in a light most favorable to plaintiffs. Instead, defendants merely try to shift the burden, asserting that plaintiffs have failed to prove "that Mr. Thomas was not engaged in disorderly conduct at the time of his arrest." Def's Memo, pg. 7. At this point, Thomas has alleged Officer O'Neill had "no probable cause," now it is the officer's turn to speak.

"(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. ]

and therefore cannot be a structure." Def's Memo, pg. 7.

Talking about "conclusory assertions," the only description on record of the objects in question was made by plaintiffs.[9] For defendants to pretend plaintiffs have not described the sign is, in a light most favorable to counsel, laughable.

With nothing in the record to support the supposition that plaintiff "used supports to create a structure," common sense, or honesty, should have prevented counsel from writing:

"(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.)

First. it seems silly to consider "IF the plaintiff has used..." as "a fact." Yet, here's counsel, without so much as a photograph, pretending "IF" has enough factual gravity to justify dismissing this complaint for failure to state a claim.

Second, IF plaintiff used supports to create a "structure," or IF defendants were just using that as an excuse to abuse their

[9 "On Monday, November 7th, USPP Officer O'Neill informed me that one of two signs I was attending was 'a structure.' I reminded Officer O'Neill that 36 CFR 7.96 (g)(x)(A)(4) states the 'term "structure" does not include signs....' and that (g)(x)(B)(2) specifies 'signs' are 'exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two (2) or more sides....'

"Unreasonably, it seems, Officer O'Neill maintains that, due to four (4) thirteen (13)-inch 2x4 supports, the sign had become 'a structure, in violation of the CFR, and subject to removal from the Park. I purposefully designed this particular sign to be aesthetically pleasing and enhance public safety. I don't think it can reasonably be argued that the four, thirteen-inch pieces of 2x4 supports constitute a security or aesthetic concern." Thomas' letter to Robbins, Complaint, Exhibit 1.]

authority, would be an appropriate question for a jury, but can't be seriously decided on the evidence presently in the record.

Likewise, in lieu of any facts, defendants can only offer a questionable notion, "IF the flags described in the complaint are attached to a sign, and cause the sign to exceed the size limits, the flags would be impermissible." Id. [10]

In a similar mode defendants' Motion says, "Indeed, the facts demonstrate that the officers informed plaintiffs of the apparent violations, and gave them an opportunity to comply with the regulations." Id, p. 10, Emphasis added. Pardon plaintiffs, but what "facts" are defendants talking about? Plaintiffs' facts say defendants intimidated an end to First Amendment expression. Am. Com. para. 15. Did defendants submit some evidence without telling us?

Plaintiffs agree that IF wishes were horses then beggars would ride. Still, defendants' contentions are not well grounded in fact, warranted by existing law or a good faith argument, and their Motion falls short of Rule 11 mandates:

[10 To eliminate some groundless speculation, there is evidence in the record showing the flags in question were allowed under a valid Park Service permit. Declaration of William Thomas, Exhibit 3. Defendants' counsel should be required to explain why defendants have ignored this permit, first in the Park, now in their pleadings. Counsel should also explain why it isn't a frivolous misrepresentation for defendants to mention that "officers allowed the plaintiffs to continue displaying the ... signs (actually flags) pending further investigation" (Def's Memo, pg. 10 (parentheses added)), without any indication that the "pending further investigation" wasn't itself something more than a simple exercise in frivolity.]

Rule 11 "mandates reasonable prefiling inquiry with respect to the facts ...

on which (the) paper is based." Sanctions Under The New Federal Rule 11, A Closer

Look, 104 F.R.D. 186, 185.

It is true, "(t)here is no allegation that plaintiff Picciotto's cooler is in any way expressive activity." Def's Memo, pg. 9. But, even if "on its face the regulation would reasonably allow the conclusion that coolers violate the regulation" (id.), taken together those observations still do not explain why the cooler in question had "been at (Concepcion's) demonstration site every day for several years" Am. Com., para 19, without any threats of arrest or even "warnings." Nor do they address the actual allegation:

"(T)he actions of Officers O'Neil and Keness with respect to plaintiff Picciotto's

cooler illustrates a continuation of the same pattern and practice pursued with

respect to the flags." Am. Com., COUNTS 5 & 7.

Packed as it is with immaterial irrelevancies, one might not notice the Motion manages to dodge the material issues:

"Repeated threats and intimidation of plaintiffs by Officers O'Neil, Keness and

others has subjected plaintiffs to extreme emotional distress, had a chilling effect

on plaintiffs' exercise of rights and privileges granted them under the Constitution,

and, () actually deprived plaintiffs of rights and privileges granted them under

the Constitution." Am. Com., COUNT 8.

Plaintiffs claim that being subjected to repeated threats and intimidation amounts to low intensity, high impact psychological warfare which, from the subjectees' point of view, amounts to personal torture and constitutional degradation.

"(R)ights are not fundamental because they find mention in the written instrument;

they find mention there because they are fundamnetal. (F)undamental rights also

rest in part on the words of the document, especialy those of

the Ninth Amendment,

'The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people,' and of the Fifth and Fourteenth

amendments protecting 'life, liberty, and property' against government's acting

'without due process of law.' American Constitutional Interpretation, Walter F.

Murphy, page 930 (1986).

Seen in a light most favorable to plaintiffs, there ought to be a branch of government to scrutinize police interaction with the most fundamental aspects of freedom and human rights.

5. "CAMPING," WELL ESTABLISHED OR,
AT LEAST AS APPLIED, "BAD" LAW?

Defendants don't deny plaintiffs may have been "'threatened' with the camping regulation," and they recognize plaintiffs "say they have been prodded or that Park Police officers have banged on signs or benches," but that doesn't prove the speculation, "presumably to awaken the plaintiffs from sleeping." Def's Motion, pg. 9. See Second Declaration of Concepcion Picciotto, attached hereto.

Plaintiffs are not defendants; and at this point plaintiffs are entitled to have their allegations

"taken as true." Reuber, supra.

Undeniably, defendants cannot point to one single incident in over six years where any plaintiff was even cited, much less formally charged, for violating the "camping" regulation. Therefore, plaintiffs assert, according to the rules, the Court should presume that when a jury hears the stories of both parties, the jury will decide that defendants had "no probable cause" to justify threatening to arrest any plaintiff for "camping," but that defendants were, unfortunately, acting under

color of regulation to deprive plaintiffs, and, in principle, everybody else, of constitutional protections. [11]

No question about it, "(t)he regulations prohibit camping in Lafayette Park. 36 C.F.R. ~ (i). The camping regulation has been upheld against constitutional challenge. See Clark v. CCNV, 468 U.S. 288 (1984)." Def's Memo, pg. 10. [12]

But this common knowledge only begins the inquiry. Questions relative to the case at bar run to whether the "color" of a valid regulation is being used to slowly, incrementally crush freedom of thought and expression in America. "Were plaintiffs 'sleeping' when defendants banged on their signs?" - "Was Marcelino 'camping' before Officer O'Neill assaulted him?" - "Was Marcelino's killing a case of police-assisted suicide?" - these are all questions obviously ignored by defendants. Which is where defendant Robbins comes in.

As Thomas noted in his oral representations to the Court on January 6th after AUSA Rider had made some imprecise blanket reference to "'sleeping' and 'camping'," Mr. Robbins is the person best able to explain the Administrative Policy on the

[11 The fact that the constitutionality of the regulations is settled does not prevent a claim, pursuant to Bivens and 42 USC 1985(3), that defendants violated plaintiffs' rights in the manner of enforcing the regulations. Bivens permits a plaintiff to seek damages from federal officials alleged to have violated constitutional rights. ]

[12 With all due respect, however, it should be noted that, before it became "well established," our Circuit Court repeatedly called the camping regulation "bad law." Community for Creative Non-Violence v. Watt, 730 F.2d 600, 605 J. Ginsburg, J. Edwards' concurring, see also, id., 601, J. Mikva, separate concurring opinion.]

enforcement of the "camping" regulation.[13] By virtue of his expertise Mr. Robbins can speak authoritively to issues like the legality or illegality of "sleeping" in Lafayette Park. Tbus, Mr. Robbins is the one able to shed light on, for example, the relevant question of whether the activity which attracted Officer O'Neill's attention to Marcelino was "well established" as "using the area for living accomodations."

If evidence at trial were to show that Officer O'Neill had indeed assaulted Marcelino on December 20th, it would be Mr. Robbins who could tell the Court whether or not Park Police "camping" enforcement policy authorized that assault.

Particularly in places where defendants' Motion raises so many "IF's," Mr. Robbins is the man to see. He's the one who wrote the regulations, [14] and he's the man who knows about the well-established nature of Agency Enforcement Policy.

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

[14 Federal Register, Vol. 51 No. 43, pg. 7556, 2nd col., March 5, 1985.]

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