Plaintiffs' Memorandum


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



Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss ("Defts' Reply"), filed May 22, 1995, is founded entirely upon discussion of letters written by Randolph Myers and Richard Robbins.[1] To afford a more balanced perspective of this case plaintiffs submit herewith Statement of Material Facts to Which There is No Material Dispute ("Pls' Facts").

Because the letters resolve no genuine issue of fact, Defts' Reply raises the question, whose "'facts' are no more than bald assertions or arguments"? (id. pg. 3), and helps to illustrate that plaintiffs are entitled to summary judgment. [2]

"The judgment sought shall be rendered forthwith if the pleadings, ... 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).


It is true, "plaintiffs take great issue with the letters ... from Randolph Myers ... and

[1 At the outset plaintiffs reiterate, Mr. Myers' letter is not ripe for serious discussion. Plaintiffs have raised specific factual and legal challenges to Mr. Myers' belated letter, to which defendants have not responded Although the Court has denied these motions, "without prejudice," the underlying factual allegations remain completely unexamined.]

[2 Plaintiffs have submitted no fewer than eleven sworn declarations, from at least five different people. Although Defts' Reply poses a puzzling innuendo regarding "contradiction to ... prior pleadings" (Infra, pgs. 11-12), defendants have not specifically challenged the factual accuracy of even one (1) allegation set out in plaintiffs' numerous declarations, ]


Richard Robbins." Defts' Reply, pg. 1. Some reasons for this are readily apparent. [3]

"(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 F2d 1, 24, citing Wood v. Strickland, 420 U.S. 308 at 322. See, Plaintiffs' Motion for Sanctions, filed February 9, 1995, pg. 14.

As this Court correctly noted,

"Plaintiffs have demonstrated 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.... Plainly, the alleged coercion of the Plaintiffs not to display their flags in the case at bar involves such protected nonspeech conduct." Order, April 12, 1995, pg. 19, cites omitted. [4]

With only bald assertions to "establish that the officers were reasonable in applying the sign size regulations to plaintiffs' flags" (Defts' Reply, id), Mr. Myers' letter was fabricated to clothe defendants' naked assertions of "official immunity." At first

[3 Defts' Reply is divided into three numbered sections. The first section deals entirely with the letters, ending with the suggestion that, "the letters by Mr. Myers and Mr. Robbins should be considered by the Court." The second section is predicated entirely on the premise that "the undisputed arrangement (of signs and flags) ran afoul of ... the regulations according to the agency's counsel." Standing on nothing other than the previously stated opinions of counsel, the final section concludes, "plaintiffs fail to dispute ... that they displayed their flags as attachments to plaintiff Picciotto's signs.... Thus... defendants are entitled to judgment in their favor."]

[4 This case also alleges violation of plaintiffs' Ninth amendment rights. In Buckley v. Valeo, 424 U.S. 1, another issue defendants have been disinclined to mention, the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of the expressive nature of plaintiffs' "symbolic vigil" depends on the "quantity" of their round-the-clock "symbolic vigil" in the public forum. See, Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing (filed February 20, 1995), pg. 17; Pls' Facts 3.]


blush, as some sort of a permit limitation, defendants ploy might appear reasonable. Further consideration should reveal serious flaws with this pretext, Pls' Facts 16.

"(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;

At least three times, [5] plaintiffs challenged the extraordinary length of time between Thomas' November 10, 1994 letter, and Mr. Myers' purported response of January 20, 1995. [6] Likewise, defendants ignore plaintiffs' express contentions that Mr. Myers' letter falls short of well established law. [7] Pls" Facts 5-15.

Plaintiffs also pointed out that, under very similar circumstances, the Circuit

[5 Motion to Strike, February 6, 1995; Motion for Sanctions, February 9, 1995 pg. 18; Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, March 20, 1995, pg. 29, see also, Opposition to Defendants Motion for Summary Judgement, June 6, 1995, pg. 6.]

[6 The C.F.R. itself is time specific on lengthy permit delays:

"A permit application ... shall be deemed granted ... unless denied within 48 hours of receipt." 36 CFR (g)(ii)(E)(3)

The Circuit Court has also noted precise time lines:

"This 19-day delay runs afoul of principles announced in A Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 142, 516 F.2d 717, 735(1975) "A fixed deadline for administrative action on an application for a permit 'is an essential feature of a permit system'; 24 hours suggested as maximum time for action, permit to be granted if no action is forthcoming within the time limit. See Shuttlesworth v. Birmingham, 394 U.S. 147, 162-164, 89 S. Ct. 935, 944-945, 22 L.Ed 162, 173-175." United States v. Abney, 534 F.2d 983, 986, ftn. 5.]

[7 "The limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1971)." United States v. Picciotto, 875 Fad 343, 347 (1989); States v. Abney, 534 F.2d 984, 985 (D.C.Cir 1976). Quaker Action Group v. Morton, 460 F.2d 854, et. seq.]


Court has already held,

"(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).

Characteristically, it appears, defendants' pleadings in this case make not one (1) single mention of Picciotto. Rather than addressing the obvious, as reasoned dialogue and Rule 11 demands, defendants instead introduced the case of Speigel v. Babbitt, 855 F. Supp. 402 (Defts' Reply, pg. 2).

The "rule of law" simply cannot tolerate after the fact prohibitions. United States Constitution, Article 1, Section V. By stooping to argumentation that is not well grounded in fact, or warranted by existing law or a good faith argument, defendants create the impression of obfuscating facts, law, and delaying justice, giving rise to the suggestion that counsel has violated Rule 11. Infra, pg. 13.


Rather than engage the factual question of whether Mr. Myers' missive constitutes "reasonable notice," or just a noticeably late letter, defendants insist "(t)he fact plaintiffs received Mr. Myers' letter after the filing of this action does not appear to be a critical point..." Defts' Reply pg. 2. [8]

[8 Here, plaintiffs assume, defendants are making some scant reference to the fact plaintiffs had complained:

"Defendants' have not supplied a copy of Mr. Robbins' letter referred to in Speigel, and the file room has not had a copy available for public review, so it has not been possible for plaintiffs to ascertain whether the letter at issue in Speigel is susceptible to the same challenges raised by Plaintiffs' Motion to Strike Mr. Myers' letter." Opposition to Defendants' Motion to Dismiss, ftn. 3.]


Determined effort [9] reveals that, unlike Mr. Myers' controversial letter in the instant case, Mr. Robbins' July 14, 1992 letter in Speigel (Exhibit 1, hereto) long predated the complaint in that action, filed April 1, 1994.

Unlike the case at bar, in Speigel, Mr. Robbins couldn't have been accused of uttering a "post hoc policy rationalization." Abney, supra.


A cursory comparison of Picciotto and Speigel shows the former case far more closely approximates the issues at bar than does the latter. By remaining perfectly mute on Picciotto it seems defendants imply Speigel stands for the premise that Mr. Robbins and Mr. Myers are vested with authority to arbitrarily, capriciously, or expeditiously declare that "flags" are "signs."

This idea must be firmly rejected for several reasons: it
(1) is ex post facto, [10]

(2) invests administrative officials with the power to deprive words of meaning by the

[9 On June 27, 1995, after repeated visits to the public documents section of the clerk's office, a copy of Mr. Robbins' Speigel v. Babbitt letter was finally obtained by plaintiffs.]

[10 The legitimacy of the officers' harassment, intimidation, threats and coercion relies on the suspect notion that "flags" are "signs." See, Order, April 12, 1995, pg. 19. But the officers' contested actions predated Mr. Myers' purportedly official determination that "flags" are indeed "signs." Whether or not "the officers' were reasonable in applying the sign size regulations to plaintiffs' flags" (Defts' Reply, pg. 1), is a matter more appropriately determined by a jury than by the bald assertions of a letter which belatedly surfaced as an exhibit affixed to one of defendants' pleadings. Infra, pg. 10.

"(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, see also, United States v. Daily 756 F.2d 1076, infra, pg. 10.]


introduction of arbitrary definitions into the language,
(3) which, in practical terms, would obviate the Administrative Procedure Act -- not to mention the need for a legislative branch of government -- and

(4) render "due process" moot.


The most pertinent difference between Speigel, and the instant matter is the well-established First Amendment, which requires the government to abide by the principle:

"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, 29-32.

Mr. Robbins' Speigel letter not only highlights the fact that the essential "regard to a First Amendment challenge" present in this case, was absent in Speigel, but it also references the Park Service's responsibility to "articulate() a sound and legitimate basis for the necessity of these restrictions." Exhibit 1, pg. 2. Plainly, after litigating the instant case for eight months, defendants have yet to identify a legitimate government interest furthered by decreeing that Concepcion's "flags" are "signs."