To avoid facing the fact of plaintiffs' "clearly established right," defendants can
6
only appeal to Mr. Myers' pronouncement of untested faith, "We believe that your
signs ... fail to conform to the regulations." Even assuming the letter had been timely,
and even if it was based on stronger authority than Mr. Myers' speculative personal
opinion, the letter itself still does not establish that defendants' coercive threats and
intimidations were legitimized under a well-established state of the law. [11]
"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)."
Moores Rules of Evidence Pamphlet, pg. 94 (1990), (parentheses substituting
for "confusion on").
3. ALTHOUGH DEFENDANTS HAVE NOT ADDRESSED PLAINTIFFS GENUINELY
DISPUTED ISSUES, AND HAVE INTERPOSED BASELESS ARGUMENTATION
THOSE ISSUES NEED NOT BE RESOLVED BY A TRIER OF FACT
Defendants assert that "plaintiffs' 'facts' are no more than bald assertions or
arguments which do not ... require resolution by a trier of fact." Defts' Reply, pg. 2. As
usual this argument relies on the presumption that Mr. Myers' letter is the authority on
flags and signs, a presumption soundly debunked by this Court's July 3, 1995 Order.
A. "THE ESSENTIAL QUESTION"
Without a legitimate government interest to justify confronting plaintiffs over the
manner in which their incontestably permitted signs AND incontestably permitted flags
[11 "It may well be that the weight of the evidence would be found on a trial to be with
the defendant. But it may not withdraw these witnesses from cross examination, the best
method yet devised for testing trustworthiness of testimony. And their credibility and the
weight given to that opinions is to be determined after trial, in the regular manner."
Sartor v. Arkansas Gas Corp., 321 U.S. 620, 628 (1944).]
7
were displayed, defendants only claim, "(plaintiffs) fail to dispute the essential fact in
this case: that they displayed their flags as attachments to plaintiff Picciotto's
stationary sign." Defts' Reply, pg. 5. (Pls' Facts ¶¶ 18-20)
As plaintiffs recall, "the essential fact" in this case is really whether defendants
violated plaintiff's well established rights to display "signs and flags" in a quintessential
public forum, thus violating various of plaintiffs' constitutional rights, as well as the
doctrine articulated in Bivens v. Six Unknown Federal Agents, 403 U.S. 388. See,
generally, Complaint.
The facts of this complaint show this was not a case where the officer politely
informed plaintiffs they were violating a regulation, and, if corrective action was not
taken within some specific time period, he would be forced to take enforcement action.
On the contrary it is uncontested that there numerous threats, intimidation and
harassment (or "warnings") [12] which resulted the filing of this action. Pls' Facts ¶ 7.
Assuming, arguendo, that the manner in which "(plaintiffs) ... displayed their
flags as attachments to plaintiff Picciotto's stationary sign" (Defts' Reply, pg. 5) had
run afoul of some clearly established regulatory scheme, plaintiffs should have been
arrested and tried as defendants.
Evidently, plaintiffs are not defendants in this case. [13]
[12 With the exception of the March 23, 1995 "disorderly conduct" charge, which was
"no papered," no criminal charges were lodged against any plaintiffs. See, Plaintiffs
Motion to Reschedule the Preliminary Injunction Hearing, R-65 pgs. 19-21. For the
purposes of this motion the factual disputes in the disorderly" incident need not be
resolved. ]
[13 See, Motion for Sanctions (January 24, 1995) pgs. 2 and 15.]
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It could easily seem patently unreasonable to dismiss this civil claim on the
basis of a baseless argument asserting that plaintiffs are somehow guilty of offending
a criminal regulation which they were never even charged with having violated.
B. BALD ASSERTIONS, BASELESS ARGUMENTS, OR DECEIT
Particularly because defendants assign such great weight to Mr. Myers' letter,
an honorable Court must be convinced that this letter is what it purports to be. Fed.
R. Evid. 901(a).
First, this January 20, 1995 letter, which claims "to respond to (Thomas'
November 10, 1994) letter to (Defendant) Robbins," was initially delivered to Thomas
by the U.S. Attorney's Office as an appendage to a January 23, 1995 pleading in this
case. [14] Pls' Facts ¶¶ 8, 9.
Second, Mr. Myers' letter obviously discusses "flags" at considerable length.
An examination of Thomas letter (Complaint, Exhibit 3) makes it equally clear that
Thomas made absolutely no mention of "flags." Since the flag incidents didn't occur
until after Thomas wrote the letter to which Mr. Myers purports to respond, it is easily
deduced that those parts of Mr. Myers' letter which take such great issue with "flags"
could not possibly have been "in response" to Thomas' letter. Pls' Facts ¶¶ 10, 11.
[14 An original copy of the same letter was later delivered to Thomas via the U.S.
mail. However, there is no question: (1) the letter first went to the U.S. Attorney, who
(2) attached the letter to Defendants' Opposition to Plaintiffs' Motion to Dismiss for
Frivolity, before (3) transmitting the letter to Thomas, making it appropriate to ask
whether the letter, which purportedly "responds to Thomas," was actually intended as
a tool with which the U.S. Attorney might avoid the merits of this case by sparing
defendants from potentially messy cross-examination. See, Declaration of William
Thomas in support of the Motion to Strike, filed February 6, 1995.]
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Third, Thomas letter to Mr. Robbins explicitly sought to avoid precisely the type
of arbitrary and capricious regulatory enforcement that is evidenced by defendants'
later actions with regard to the flags. Pls' Facts ¶¶ 7; see also, infra, pg. 11, Are
Defendants Pleadings Inherently Contradictory?
Fourth, while plaintiffs dispute that Mr. Myers or Mr. Robbins are vested with
authority to make the post hoc judicial decisions expressed in their letters; plaintiffs
concurrently assert, that the same letters clearly indicate Mr. Robbins is vested with
the authority to insure that the regulations are not enforced as arbitrarily and
capriciously as they were in the instance of plaintiffs' flags. Pls' Facts ¶ 15.