Plaintiffs' Memorandum in support of Opposition


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |



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.


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).
"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. omitted).


On a Motion for Summary Judgment, Rule 56 requires,
"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).

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:
"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.

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:

"(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.

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.

"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, 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.

"(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.

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 already ruled:

"(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.

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:

"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.

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.

"(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.

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 faith" claims.

"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).


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.

William Thomas
2817 11th Street N.W.
Washington, D.C. 20005