There is obviously some question as to the "clearly established" guidelines on "camping," "sleeping," "signs," or "flags," in the first place. Since counsel has not supplied the "well established" parameters, there might even be some question whether there are any. Or maybe counsel just forgot to ask Mr.
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Robbins. In any event, the mere necessity to ask that question speaks to the permissiblity, perhaps we might even go as far as to say "judicial duty," of inquiring into the question of the individual agent defendants' subjective states of mind.
Rather than simply have Mr. Robbins state the "well established" guidelines that allowed Officer Keness to intimidate Concepcion out of her consitutional rights, or Officer O'Neill to kick Marcelino under color of the "camping" regulation, counsel argues that "plaintiffs' complaint is also deficient in that they have failed to allege facts supporting any of the defendants' intent to deprive them of their First Amendment rights." Def's Memo at 10. Indeed, defendants note:
"such intent must be pleaded with specific, discernible facts or offers of proof
that constitute direct as opposed to merely circumstantial evidence of the intent."
Def's Memo at 12, citing Harlow v. Fitzserald, 457 U.S. 800, 818.
Basically, defendants purport that "(n)one of plaintiffs' allegations demonstrate a knowing violation of a clearly established constitutional right." Id. pg. 14.
After their fashion,[15] plaintiffs made a good faith effort to commit discernible facts regarding defendants' intent to deprive them of their First Amendment rights:
"I explained to Officer Keness that I'd been thinking about his behavior for
about an hour, and had decided that I didn't think he was crazy. I then explained
that ... I could only imagine three possible explanations for his actions regarding
the flags: (a) he doesn't like Concepcion, (b) he doesn't like what she is saying, or
(c) a combination of (a) and (b). After Officer Keness said, 'I'm just doing
[15 The averments of a pro se complaint are to be read with liberality. Haines v. Kerner, 404 U. S, 519 (1972)]
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my job,'
I asked, 'Assuming harassing Concepcion about these flags is part of a policeman's job,
and there are three Park Police officers stationed on the White House sidewalk
twenty-four-hours-a-day, seven-days-a-week, but only a couple of clearly identifiable
officers have harassed Concepcion about her flags, wouldn't that mean that most of
those police on the sidewalk aren't doing their jobs?' "Officer Keness left
without further comment." Declaration of William Thomas, paras. 18 & 19.
Counsel ignores plaintiffs' claim, claiming instead, "plaintiffs have failed to satisfy the heightened pleading standard applicable to Bivens plaintiffs, their Bivens claims against all of the individual defendants must be dismissed" (op cit). It looks as if counsel has again run afoul of Rule 11 guidelines requiring counsel to "read the papers" in order to "eliminate ignorance as an excuse," and the "empty head defense."
Whether "attempting to enforce the regulations" (Def's Motion, page 1) equates to "attempting to subvert the Constitution under color of regulations" is a factual matter, dependent on the subjective police agent's state of mind. It is not an appropriate consideration for this Court, but must be submitted to a jury. Hobson v. Wilson, 737 F.2d 1.
"The ultimate issue in the present case (now becomes defendants') subjective
state of mind." United States v. Thomas, 557 A.2d 1296, 1300 (substituting).