UNITED STATES DISTRICT COURT
Plaintiffs' Memorandum in support of Opposition
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2742
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFFS' OPPOSITION TO
DISMISSAL AND SUMMARY JUDGMENT
On May 15, 1995 Defendants' filed a Motion to Dismiss the
Amended Complaint, or, in the Alternative, for Summary Judgement in
Their Favor. Plaintiffs hereby oppose those motions.
1. MOTION TO DISMISS
When presented with a motion to dismiss, a court must construe
the complaint in the light most favorable to the plaintiff and its
allegations must be taken as true. Moreover, any ambiguities or
uncertainties concerning the sufficiency of the claims must be
resolved in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5,
10 (1980); Scheuer v. Rhodes, 416 U.S. 232, 236 (1979); see also 5
Wright C Miller, Federal Practice and Procedure 6 1357 (1969).
2. MOTION FOR SUMMARY JUDGMENT
On a Motion for Summary Judgment, Rule 56 requires,
"We follow, of course, the accepted rule 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, 45 (1957) (ftn.
In reviewing a motion for summary judgment, the court must
consider the pleadings, related documents, and evidence in a
light most favorable to the non-moving party. Adickes v. Kress
Co., 398 U.S. 144 (1970). An issue is genuine only if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party. If the evidence is merely colorable, or
is not significantly probative, summary judgment may be granted.
Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). Moreover, a
factual dispute does not preclude summary judgment unless the
disputed fact is outcome determinative under the governing law.
To succeed on their motion to dismiss, or for summary
judgement, defendants find it necessary to convince the Court
that it has erred in holding:
"The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c).
As the Court has noted, "a clearly established right is
implicated by the Defendants' actions." To convince the Court
to change its mind, defendants must circumvent a problem:
"First, the Plaintiffs have established that a clearly
established right is implicated by the Defendants' actions.
It is beyond doubt in this Nation's jurisprudence that
nonspeech conduct sometimes qualifies as expressive conduct
protected by the First Amendment. Tinker v DesMoines Indep.
Community Sch. Dist., 393 U.S. 503, 508 (1969). Plainly, the
alleged coercion of the Plaintiffs not to display their
flags in the case at bar involves such protected nonspeech
conduct, See Stromberg v. California, 283 U.S. 359, 369-70
(1931) (striking down prohibition on display of red flags as
an emblem of "opposition to organized government");
Milwaukee Mobilization for Survival v. Milwaukee City Park
Comm'n, 477 F. Supp. 1210, 1218 (E.D. Wis. 1979) (striking
down prohibition on display of flags without written
permission of a Park Commission).
"Second, the plaintiffs have claimed with sufficient
specificity that the Officers acted unreasonably in relation
to that clearly established right by threatening the
Plaintiffs with arrest.." Order, April 12, 1996, pg. 19.
Absent any factual basis to support a claim that pretending
"'flags' are 'signs'" is "reasonable," defendants must rely
exclusively upon a letter, dated January 20, 1995, written by
Randolph Myers. E.g. Defendants May 15th Memo. pgs. 8, 12, 13,
see also, the Plaintiffs' Statement of Issues of Material Fact to
Which There Exists a Genuine Dispute ("Pls' Facts"), ¶ 9.
Defendants simply ask the Court to agree that defendants
O'Neill and Keness "acted reasonably" on the theory that Mr.
Myers' letter embodies a "well-established" premise under which
"flags" may reasonably be "signs." There are several reasons for
the Court to summarily reject this notion.
Mr. Myers' letter shouldn't even be a topic of serious
discussion at this stage of the litigation.
"(A)n official would not receive qualified immunity if he
'knew or reasonably should have known that the action he
took within his sphere of official responsibility would
violate the constitutional rights of the [plaintiff] or if
[the official] took the action with the malicious intention
to cause a deprivation of constitutional rights or other
injury'." Hobson v. wilson, 737 F.2d 1, 24, citing Wood v.
Strickland, 420 U.S. 308 at 322, see, Plaintiffs' Motion for
Sanctions, filed February 9, 1995, pg. 14.
Mr. Myers' letter, purportedly "in response" to Thomas'
November 10, 1994 letter to Richard Robbins (Amended Complaint,
Exhibit 1), was conveyed -- fully 70 days after the fact which it
purports to address -- through the unconventional method of
attaching it as Exhibit 1 to the Defendant's Opposition to
Plaintiffs' Motion to Reconsider Denial of Plaintiffs'
Application for a TRO, or, Alternatively to Dismiss the Complaint
as Frivolous, filed January 23, 1995.
Thus, Mr. Myers' letter raises a reasonable inference that
it was produced as an "impermissible, ex post facto excuse for
the unconstitutional, "tragic, ultimately lethal attitudes of the
author's subordinates"" Pls' facts, ¶ 9.
"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 there 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").
Mr. Myers' letter does not determine that defendants
interpretation is rational, serves any legitimate government
interest, or that defendants had any reasonable grounds to
suspect plaintiff violated a "well-established" regulation. Pls'
Facts, ¶¶ 3, 3, 5 and 6.
Mr. Myers' letter only states a personal belief, "We
believe that your signs, as currently constructed, fail to
conform to the regulations." Myers' letter, pg. 2, para. 2.
Pls' facts, ¶¶ 7, 8.
Defendants have still made no attempt to address the
numerous challenges to the fundamental integrity of Mr. Myers'
letter, posed by plaintiffs (footnotes 1 supra, and 4 infra).
Instead they only refer the Court to the case of Speigal v.
Babbit, 855 F. Supp. 402, as if that case bestows legal authority
for Mr. Myers and/or Mr. Robbins to decree that flags are really
signs. Defs' Memo, pg. 10. Pls' facts, ¶ 9.
Based on the logical extension of certain illogical and/or
factual inaccuracies contained in some of defendants' earlier
insinuations (Pls' facts, ¶ 1 and 2), plaintiffs have previously
addressed the "anything Mr. Robbins says is law" theory which
defendants now seek to bolster by citing Speigal. Twice,
already, plaintiffs have noted, in considerable detail, that
under strikingly similar circumstances, the Circuit Court has
"(T)he post hoc policy rationalization belatedly supplied by
the Director cannot be thought to provide the necessary
binding standards where the regulation has none. Cf.
Shuttlesworth v. Birmingham, 394 U.S. 147, 153." United
States v. Abney, 534 F.2d 983, 986.
The most pertinent difference between Speigal, and the
instant matter is the well-established First Amendment, where the
government is required to abide by the legal principle that:
"(t)he rule (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." United States v. Picciotto, 875 F2d 343, 349 (1989).
See, Motion for Sanctions, filed February 9, 1995 pgs. 18,
and Plaintiffs Reply to Defendants' Response to Plaintiffs'
Motion to Reschedule the Preliminary Injunction Hearing,
filed March 20, 1995, pg. 29.
Nowhere in the explications of their numerous pleadings have
defendants made any attempt either to identify any legitimate
government interest furthered by decreeing that Concepcion's
flags are signs, or to engage the law stated in Picciotto. The
addition of Speigal, only focuses the suggestion that Picciotto
should control in deciding whether Mr. Robbins is vested with
authority to arbitrary and capriciously declare flags are signs.
This idea should be rejected if only because it would
trivilize the idea of the judicial process, which has already
established a process for determining questions of this nature:
Pls' facts, ¶¶ 1, 2, 7, 8 and 9.
"Symbolic expression of this kind may be forbidden or
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)."
(EMPHASIS added); Pls' facts, ¶¶ 1-4, 7-8.
It is not possible, or procedurally correct, both "to
construe the complaint in the light most favorable to the
plaintiff" (Hughes, supra), while crediting defendants "good
"(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.
Properly construed, plaintiffs factual allegations preclude
serious discussion of any notion of dismissal, or summary
judgement based solely on Mr. Myers' letter, and a mere mention
of Mr. Robbins' letter in Speigal
Respectfully submitted this 7th day of June, 1995.
"Accordingly, whether a police officer must respond in
damages for his actions is judged by whether his
conduct was reasonable, considering all the
circumstances, and by whether be acted in good faith.
A police officer's stated good faith belief in the
necessity or wisdom of the action is not dispositive of
that element of the defense, but must be supported by
objective evidence." Glasson v. City of Louisville,
518 F.2d 899, 909 (9th Cir 1975), Peirson v. Ray, 386
U.S. 547 (1967); Monroe v. Pape, 365 U.S. 167; Scott v.
Vandiver, 476 f.2D (4th Cir 1973); Rodriques v. Jones,
473 F.2d 599 5th Cir 1973); Dowsey v. Wilkins, 467 F.2d
1022 (5th Cir 1972).
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Washington, D.C. 20005