Plaintiffs' Proposed Order


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


Presently before the Court are cross motions for Summary Judgment.

It is beyond doubt that, in sum, plaintiffs complain defendants are making up the "law" and/or enforcing it, at whim, in an abusive manner. Plaintiffs have submitted numerous sworn declarations and documentary evidence in support of their claims.

On the other hand, defendants, who have not filed even one declaration or affidavit, and who were "not ready" to put on witnesses at the January 6, 1995 evidentiary hearing in this matter, when plaintiffs stated that they had five witnesses present and prepared to testify, urge the Court to ignore the obvious, and accept a letter written by Randolph Myers, an Assistant Solicitor with the DOI, as proof that plaintiffs clearly established rights were not violated.

The Court is precluded from honoring defendants suggestion. Plaintiffs have hotly contested the integrity of Mr. Myers' letter, and under the Federal Rules of Evidence "the Court cannot consider the letter at any stage in the proceedings unless and until it is submitted in a form which has evidentiary value

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. 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, 281 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).

As people of integrity, for the sake of civilization, we must bear in mind the bedeviling fact that whenever issues involving freedom of thought and expression are in litigation, the rule of law is at stake.

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 1 Cranch 138, 163 (1803).

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 C 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.

"It is thus axiomatic that even in the face of some factual disputes, 'where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate.'" Esser v. Phillips, 710 F.2d 292, 296-97 (7th Cir.), cert. denied, 464 U.S. 918 (1983) (citations omitted).

Actually the factual dispute in this matter is graphically illustrated by different photographs submitted by both parties, all depicting the demonstration of plaintiff Picciotto. Plaintiffs' Third Motion for Sanctions, February 9, 1995 Exhibit 2-C; Defendants' Motion to Dismiss the Amended Complaint, or in the Alternative of Summary Judgment, May 15, 1995, Exhibits 2 A-C. Plaintiffs assert that these photographs illustrate the socially beneficial exercise of free thought and expression, Defendants contend the photographs depict a crime.

Upon consideration of plaintiffs' Motion for Summary Judgment, Plaintiffs Statement of Material Facts to Which There is No Material Dispute ("Pls' Facts") and the entire record in this case, as discussed below, plaintiffs are entitled to the judgment sought as a matter of law. Moreover, happily, granting the relief to which plaintiffs are entitled by law will result in no harm to defendants, while lending protection to the most sacred ideals and human life against the malicious, or just plain thoughtless abuse of deadly force.


In COUNT ONE of their complaint, plaintiffs allege:

"The actions of Officers O'Neill and Keness have been without probable cause. Plaintiffs allege these actions indicate that, animated by political or religious animosity, defendants have entered into a scheme of regulatory enforcement designed to chill, disrupt or terminate the exercise of plaintiffs' constitutionally- protected expressive religious activities in the world's premier public forum."

As plaintiffs have shown, and defendants have not disputed, their fourteen year old vigil, in a public forum, communicating in a manner likely to be understood, on issues of profound importance and broad public concern, certainly implicates First Amendment scrutiny. Spence v. Washington, 418 U.S. 410-11. Pls" Facts 1-3.

It is uncontested, and clearly documented in plaintiffs' pleadings, that Officers O'Neill and Keness had repeated hostile encounters with plaintiffs which all centered on plaintiffs' vigils. It is also uncontested that those encounters were disruptive of plaintiffs' activities, as well as physically and psychologically torturous. There are also uncontested facts from which one might infer that Officer Keness was animated by a dislike for Concepcion, what she was saying, or both. Thomas Declaration in Support of the Complaint, 4-6, 113-19; Picciotto Declaration in Support of the Complaint, 4, 5.

In the face of these uncontested facts, defendants have offered only Mr. Myers' letter to establish a "well-established right" for the behavior of Officers O'Neill and Keness two and three months before the letter was written. By defendants' calculation this letter supports their claim that the officers were doing "little more than ... attempt(ing) to enforce the regulations."

The purpose of plaintiffs' letter to Mr. Robbins was to "avoid a baseless arrest and the unnecessary disruption of (plaintiff's) religious activity." Had defendants delivered Mr. Myers' letter on December 19th, it would have provided an opportunity to "break the cycle" of "bad law" for which Thomas felt he was "indirectly responsible." Pls' Facts 8, see also, Thomas' Declaration, March 1, 1995, 30. But the letter still wasn't even written until a month later. Our Court of Appeals has previously cautioned against such retarded administrative action:

"(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;

By the time Marcelino was killed, the letter was too late. Because what plaintiffs had been arguing for years to avoid -- a tragic exercise of police power misused -- had already come to pass, they had no alternative but to turn, once again, to the Courts.

Under color of "official immunity," defendants urge the Court must condone arrest, assault, intimidation, or whatever means "necessary" for Government agents to harass people who are doing no more than espousing religiously or politically unpopular ideas. But this would be wrong.

"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989); Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

Accordingly, summary judgment is appropriate as to COUNT ONE of plaintiffs' complaint.


In COUNT TWO of their complaint, plaintiffs allege

"that Officers O'neill and Keness have repeatedly abused their positions of authority to intimidate plaintiffs with respect to plaintiffs' religious and expressive activities, thus chilling the exercise of rights guaranteed under the First Amendment."

Although the Government is required to provide a "satisfactory explanation for its action including a 'rational connection between the facts found and the choice made'" (Burlington Truck Lines, Inc. v. United State, 371 U.S. 156, 168), defendants have utterly failed to make such a connection. Additionally, defendants have not suggested any legitimate government interest, or reasonable time, place and manner restrictions to justify the suppression of plaintiffs nonspeech expression. United States v. O'Brien, 391 U.S. 367, 376 (1968) .

"'The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that the essence of all that has been said and written on the subject is that only those interests of the highest order ... can overbalance legitimate claims to the free exercise of religion.' Wisconsin v. Yoder, 406 U.S. 205, 215." Thomas v. Review Board, 45 U.S. 707, 718.

In the absence of any clearly specified Government interest to legitimize the uncontested intrusions by defendants upon plaintiffs' constitutionally-protected activity, there are no factual disputes to be resolved on this point.

Accordingly, summary judgment is appropriate as to COUNT TWO of plaintiffs' complaint.


In COUNT THREE of their complaint, plaintiffs allege,

"the actions of Officer O'neill caused the false arrest and lodging of false criminal charges against plaintiff Thomas, in violation of rights guaranteed under the Fifth and Fourteenth Amendments, and directly resulted in the disruption of Thomas' expressive activities in the Park."

Assuming Officer O'Neill's report is entirely accurate, which we have to do at this point (Scheuer v. Rhodes, 416 U.S. 232, 236 (1979)), Officer O'Neill took action to disrupt an animated conversation between two demonstrators (not a hint of physical threat), after which, he asserts, Thomas told him to "climb a flagpole." Crediting defendant's account, the incident was still nothing more than a law enforcement agent who was attracted by a boisterous conversation, which he decided to break up.

"The content of the message (one may) espouse is theirs and theirs alone; they may express views and employ verbal formulae that would be punished as seditious libel, blasphemy, or obscenity in less free societies." White House Vigil for the ERA v. Clark, 746 F.2d 1518, 1528.

Plaintiffs' allegations are a bit more serious. They claim that this is just one incident in a long chain of hostile encounters with various Park Police officers. In addition to the immediate disruption of his conversation, plaintiff's expressive activities were further disrupted by the time wasted in the Park Police lockup and D.C. Superior Court owing to Officer O'Neill's abuse of process. See, generally, Declarations in Support of the Complaint, and ., Declarations of Wade Varner, February 24, 1995, and David Jackson, February 24, 1995.

Plaintiff claims the arrest was "without probable cause," and the U.S. Attorney, who declined to prosecute, apparently agreed. Defendants already had one bite at the apple, if they didn't digest that opportunity to try Thomas on disorderly conduct, they need not be afforded an opportunity to try to convince a jury in this civil case that Thomas was guilty of disorderly conduct.

Whichever combination of alleged facts one chooses to adopt, defendant's action amounted to disruption of plaintiffs' expressive activities in the Park.

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See New York Times v. United States, 427 U.S. 763; Elrod v. Burns, 427 U.S. 347, 373.

Officers must always carry out their duties in a purely objective fashion. They must not allow themselves to be taunted or allow their emotions to govern their actions. Instead, they must anticipate the reactions that citizens may have in their encounters with the police and exercise only that degree of authority and force necessary to resolve the matter. In short, they should refrain from overreaction. As a general rule when dealing with these minor confrontations, officers should interface with the public in the same way they would expect to be treated if the roles were reversed.

Accordingly, summary judgment is appropriate as to COUNT THREE of Plaintiffs' complaint.


In COUNT FOUR of their complaint, plaintiffs allege

"that the actions of Officers O'neill and Keness with respect to their relentless attempts to intimidate plaintiffs to remove the constitutionally-protected, NPS- permitted flags would constitute a pattern and practice of illegitimate abuse of power intended to suppress the free exercise of thought and expression."

Assuming Park Police supervisors have failed to properly advise their agents, an individual officer may fail to appreciate the intrinsic symbolic value of a flag, but they should have known. E.g., Texas v. Johnson, 109 S. Ct. 2533 (1989).

Defendant officers were not charged with maintaining the solemnity appropriate in a church or funeral parlor. Lafayette Park is the premier public forum on the face of the earth. The major difference between Lafayette Park and Red or Tiananamen Squares is the deference paid to the free thought and public expression.

"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties. The privilege to use the streets and parks for communication of views on national questions may be regulated in the interest of all. It is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order, but it must not, in the guise of regulation, be abridged or denied." Hague v. CIO, 307 U.S. 496, 515-516.

Accordingly, summary judgment is appropriate as to COUNT FOUR of plaintiffs' complaint.