Plaintiffs' Proposed Order Continued
COUNT FIVE
In COUNT FIVE of their complaint, plaintiffs allege
"that the actions of Officers O'neill and Keness with respect to plaintiff
Picciotto's cooler illustrate a continuation of the same pattern and practice
pursued with respect to the flags."
Defendants misrepresent this aspect. They simply
"suggest, a cooler simply does not implicate the First Amendment." Defts'
Reply, pg. 9.
Plaintiffs agree, but, as is obvious from the words "actions ... illustrate a
continuation of the same pattern and practice," they don't make that assertion. It is
uncontested that (1) the cooler had been at the vigil for years, (2) Park Service
regulations provide "a person in Lafayette Park may have literature, papers, food,
clothing, blankets and a reasonable cover to protect such property" (36 C.F.R
7.96(j)(2)), and (3) plaintiff had a permit. Complaint, Exhibit 3.
It appears that plaintiffs' fourteen-plus year old vigils have achieved the near
status of a First Amendment landmark, likely to be understood by visitors from around
the world. The caption under a photograph of plaintiff Picciotto, published in the
Berlitz Travel Guide (1991) states, "It is the right of every American to set up stand
and make a point in Lafayette Square." Plaintiffs' Third Motion for Sanctions,
February 9, 1995 Exhibit 2-C.
In this sense plaintiffs might easily be appreciated as an example of "what
makes America great." For law enforcement agents to arbitrarily persecute individuals
who have dedicated their lives to symbolizing the highest ideals of this nation is an
intolerable error. If there were any indication that plaintiffs were engaged in activities
that threatened some person, property, or legitimate government interest, this case
would be much easier. As it is, however, defendants have shown no such concerns in
this case, thus defendants' actions must be viewed as a serious and unacceptable
threat to the most sacred and ancient principles of our country.
"The extraordinary nature of these charges makes this an easy case. Whatever
authority the Government may have to interfere with a group engaged in unlawful
activity, and however it may be permitted to impede or deter rights of lawful
association as a by-product of legitimate Government actions, it is never
permissible to impede or deter lawful civil rights/political organization, expression
or protest with no other direct purpose and no other immediate objective than to
counter the influence of the target associations." Hobson v. Wilson, 737 F.2d 1,
27, emphasis in original, see also, Dombrowski v. Pfister, 380 U.S. 479, 482.
Accordingly, summary judgment is appropriate as to COUNT FIVE of plaintiffs'
complaint.
COUNT SIX
In COUNT SIX of their complaint, plaintiffs allege,
"defendant Robbins and other defendants in supervisory capacity have placed
freedom of thought and expression, plaintiffs, the general public, and Marcelino
Corneil in particular, in danger by failing to properly oversee a well-armed police
force, although they knew, or should have known, of extra-legal conflicts by
their subordinates toward demonstrators and others in the Park."
While defendants don't dispute that Mr. Robbins has the official responsibility of
advising the Park Police concerning the enforcement of the Park regulations, they
apparently maintain that Mr. Myers' letter of January 20, 1995 represents the
fulfillment of Mr. Robbins' official duties. As discussed above, Mr. Myers' letter lacks
any evidentiary value. For this reason defendants' argument must fail.
Although plaintiffs emphasize the fact that they are not challenging the
regulations, others have:
"The Court's disposition of this case is marked by two related failings.
First, the
majority is either unwilling or unable to take seriously the First Amendment claims
advanced by respondents. Contrary to the impression given by the Majority,
respondents are not supplicants seeking to wheedle an undeserved favor from the
Government. They are citizens raising issues of profound public importance who
have properly turned to the courts for the vindication of their constitutional rights.
Second, the majority misapplies the test for ascertaining whether a restraint on
speech qualifies as a reasonable time, place, and manner regulation. In
determining what constitutes a sustainable regulation, the majority fails to subject
the alleged interests of the Government to the degree of scrutiny required to
ensure that expressive activity protected by the First Amendment remains free of
unnecessary limitations.
(Facts omitted.)
"The political dynamics likely to lead Officials to a disproportionate sensitivity to
regulatory as opposed to First Amendment interests can be discerned in the
background of this case. Although the Park Service appears to have applied the
revised regulations consistently, there are facts in the record of this case that raise
a substantial possibility that the impetus behind the revision may have derived less
from concerns about administrative difficulties and wear and tear on the park
facilities, than from other, more 'political,' concerns." Clark v CCNV, 486 U.S. 288,
Justices Marshall, Brennan, dissenting, first and last paragraphs.
The regulation itself is not at issue. Notwithstanding, assuming, without any
grounds to do so, that Mr. Corneil was guilty of violating the regulation, Officer O'Neill
was still not legally empowered to assault him. As subsequent tragic events illustrate,
insuring that police officers
"It is not consistent with the policy of our political institutions, or the manners of
the people of the United States, that any ministerial officer, having public duties
to perform, should be above the compulsion of the law, in the exercise of those
duties." Marbury v. Madison, 1 Cranch 149 (1803).
Plaintiffs have specifically alleged that Officer O'Neill did assault Mr. Corneil by
kicking him and poking or prodding him with a nightstick. Plaintiffs have supported
these allegations with sworn statements. See, Declarations of Wade Varner,
December 20, 1994, and February 24, 1995. Defendants, although afforded over
eight months in which to do, have made absolutely no attempt to contest plaintiffs
appropriately supported allegations.
Officer O'Neill's abuse of authority which preceded the shooting of Marcelino
Corneil, under the pretext of the minor regulations, is a graphic demonstration of the
result of abuse of legal authority, and emphasizes the necessity for this court to
protect not only plaintiffs, but the liberty, welfare, and physical well-being of anyone
who happens into the abusive path of well-intentioned power gone astray, and of
society in general.
"It should be appalling to think that officers of the Park Service
exercise so little discretion in discharging their duties. In addition, one
can only wonder why such actions were taken without supervision by
superiors within the Park Police. While discretion and common sense
are difficult to teach, it should be hoped that the Park Service could find
a way to encourage its officers to use good judgment, objectivity, and
common sense in discharging their responsibilities." Richardson v.
Department of Interior, 740 F.Supp. 15, 27 (1990), J. Sporkin.
Accordingly, summary judgment is appropriate as to COUNT SIX of plaintiffs'
complaint.
COUNT SEVEN
In COUNT SEVEN of their complaint, plaintiffs allege
"that the manner in which Officers O'neill and Keness were able to repeatedly
threaten plaintiffs over 1) a legal sign, 2) flags, not only protected by the First
Amendment, but for which plaintiffs also held a valid permit 3) a cooler, and 4)
'camping' shows the broad, standardless nature of the regulations at issue, and
how easily those regulations can be used as a pretext to suppress expressive
activities."
Plaintiffs agree defendants are correct to maintain, that they cannot maintain an
action on behalf of Marcelino Corneil, but, of course, that is not the case here.
Plaintiffs have alleged that they are regularly harassed by Park Police officers under
the pretext of enforcing the camping regulation. Plaintiffs have supported their
allegations with sworn declarations. Ellen Thomas Declaration, December 21, 1994,
pages 1 & 2, Concepcion Picciotto Declaration, February 24, 1995. Although two of
these plaintiffs have in the past been convicted, and sentenced to prison, for violating
the camping regulation, none of these plaintiffs have even been accused of violating
that regulation since 1987.
By virtue of their "continuous symbolic presence" in Lafayette, plaintiffs are
necessarily subject to continued police harassment under color of the camping
regulation. As illustrated by the death of Mr. Corneil that harassment can have fatal
consequences.
"An agent acting - albeit unconstitutionally - in the name of the United States
possesses a far greater capacity for harm than an individual trespasser.... (cites
omitted) '(W)here federally protected rights have been invaded, it has been the
rule from the beginning that courts will be alert to adjust their remedies so as to
grant the necessary relief.' Bell v. Hood, 327 U.S. at 684." Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 402.
In making this decision the Court does not imply that the Park Service may not
have valid reasons for enforcing the camping regulation, it merely affirms that the
enforcement, as with any regulation, should be reasonable, and the public protected
from the dangers and evils inherent in the potential of arbitrary, unreasonable or
malicious enforcement, and establish guidelines which allow both for reasonable
enforcement while insuring against abuse of the regulation.
Accordingly, summary judgment is appropriate as to COUNT SEVEN of
plaintiffs' complaint.
COUNT EIGHT
In COUNT EIGHT of their complaint, plaintiffs allege,
"repeated threats and intimidation of plaintiffs by Officers O'neill, Keness and
others have subjected plaintiffs to extreme emotional distress, had a chilling
effect on plaintiffs' exercise of their rights and privileges granted them under the
Constitution, and, as with the arrest of Thomas by Officer O'neill and the
intimidation of Concepcion Picciotto to the point where she removed her flags
under threat of arrest, in some instances actually deprived plaintiffs of rights
and privileges granted them under the Constitution."
On the issue of permits, it should be mentioned that defendants seem to take a
rather unconventional approach. Defendants argue that it didn't matter whether
plaintiff had a permit to display "two signs and two flags," because the permit requires
that permit holders abide by other regulations on conduct in the Park. This argument
reflects an overly restrictive, facially illogical approach.
As the term implies, a permit is an instrument which allows the bearer certain
latitudes not normally granted. For example, 36 C.F.R 7.96(g)(x)(B)(2), the sign-size
regulation, sets out certain limits on the size, placement and attendance of signs used
by demonstrations, and should a potential demonstrator apply to the Park Service to
display a sign larger than the size specified by 36 C.F.R 7.96(g)(x)(B)(2), the agency
has the authority to grant permission - to permit - the placement of a sign which
otherwise would be a violation of the regulation. Of course, if a permit is granted
permitting an individual to have a sign larger than the regulation prescribes, such a
permit would not exempt the holder from violating, for example, the "littering
regulation." Just the same, defendants' argument that a permit which specifically
allows "two signs and two flags," is invalid because it permits "two signs and two
flags" is absurd wan the from the beginning.
Aside from the obvious nonsensical nature of the argument, defendants have
not provided not one scintilla of evidence that would support a contention that any
legitimate interest is served by precluding plaintiffs from displaying "two signs and two
flags" the manner they have been doing for years.
Accordingly, summary judgment is appropriate as to COUNT EIGHT of plaintiffs'
complaint.
The Court notes that, in addition to permitting plaintiffs to display two signs
and two flags, the National Park Service permit (Complaint, Exhibit 3) also condones
plaintiffs' "continuous presence."
The Court concludes that the photographs accompanying the January 20, 1995
letter of Randolph Myers; 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 represent an
accurate portrayal of the activity permitted in the permit at Complaint Exhibit 3.
" Because of their subjective nature, aesthetic concerns are easily manipulated,
and not generally susceptible of objective proof. The danger is not just, as the
majority suggests, that government might adopt an aesthetic rationale as a
pretext for an impermissible motive, but rather that so many forms of robust
expression are by their very nature boisterous, untidy, unsightly, and downright
unpleasant for unsympathetic viewers. " White House Vigil for ERA v. Clark,
746 F.2d 1518, 1551
Defendants have utterly failed to show that plaintiffs "vigils" have resulted in
any tangible damage to park resources, and defendants were unable to present any
legitimate government interest which would be served by preventing plaintiffs from
continuing their "vigils." Therefore the Court agrees with plaintiffs contention that the
photographs various contested photographs depict free thought and expression, and
are entitled to the protection of the First Amendment.
Based on the final rulemaking publication for the "camping regulation (Fed.
Reg., Vol. 47, No 108, June 4, 1982, pg. 24301, Col. 1) the Court concludes that the
original intent of 36 CFR (i)(1) was "not to stifle First Amendment expression," but to
prevent the use of tents or other temporary structures in conjunction with the
facilitation of demonstrations, which, the Park Service stated, would impact park lands
in an unsustainable manner, and that plaintiffs, in demonstrating "living without
accommodations," have not used any tents or temporary structures.
Finally, plaintiffs convincingly showed that the camping regulation had been
applied, without probable cause to justify threats by police officers directed to
demonstrators, and intimidating and intrusive police actions which would be expected
to chill First Amendment exercise.
WHEREFORE, this ____ day of ________, 1995, it shall be and hereby is,
ORDERED that unless plaintiffs' activities exceed those represented in the permit
which they presented as evidence (Complaint Exhibit 3), or unless it can be shown
that plaintiffs' activities have materially damaged park resources, or that they have
used tents during the course of their demonstrations, defendants and their agents are
permanently enjoined from enforcing the camping regulation against plaintiffs, and it is
FURTHER ORDERED, that defendants, and their agents are permanently enjoined
from threatening, harassing, intimidating, arresting, or warning plaintiffs under color of
plaintiffs' display of two signs and two flags as depicted in the photographs at issue.
and it is
FURTHER ORDERED, that defendants shall institute a standard of regulatory
enforcement that will insure defendants agents are precluded from arbitrarily,
capriciously, or maliciously enforcing the valid C.F..R. regulations pertaining to
demonstration activities in Lafayette Park, and it is,
____________________________
Charles R. Richie
UNITED STATES DISTRICT COURT JUDGE
cc: William Thomas
2817 11th Street Nw
Washington, D.C. 20001
(202) 462-0757
Ellen Thomas
2817 11th Street NW
Washington, D.C. 20001
Concepcion Picciotto
Post Office Box 4931
Washington, D.C. 20080
AULA Kimberly Tarver
555 4th Street NW
Washington, D.C. 20001
ROOM 10-808