Response To Federal Appellees' Reply - Continued

C. The District Court Improperly Denied Appellant's Motion To Consolidate.

In their Reply appellees' assert, '(t)his issue was not identified by appellant pro se as an issue to be raised on appeal." Reply, pg. 7, ftn. 1. After carefully re-examining his Statement of Issues Raised (under this Court's October 30,1995 date-stamp), appellant

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pro se is firmly convinced that issue Number One (1) states, "The District Court erred in refusing to Consolidate the instant matter with Thomas v. United States, et al., US Dist Ct No. 94-02747" ("Thomas I"). [11]

Obviously appellees can't contend this issue was not raised in the District Court; the docket sheets show that on August 4, 1995 a joint status hearing was held on the issue. Record, 8/4/95 compare, Thomas I, Record, 8/4/95. [12] Arguably, in Thomas I appellee pro se may have erred by failing to file a motion to consolidate in that case. However, any perceived error of that nature was rectified when the District Court Ordered both counsel in Thomas I (Thomas I, Record 105), [13] and counsel in the instant case to "respond to ..... plaintiff's motion to consolidate." Record 38, 39 and 40.

Substantively, [14] to deny consolidation the District Court merely held "there are insufficient issues of law and fact in common between the present case and Thomas I to warrant consolidation." Record at 46, pg. 8. Hence, appellee's actually do recognize that the only remaining question is whether "there are no common issues of fact or law

[11 "Thomas I" is currently pending before this Court as US App. No. 95-5340, where the issue of consolidation is also raised.]

[12 No docket number has been assigned in either case, and transcripts of the hearing have yet to be prepared. Presently pending before this Court is appellant's motion, filed October 30, 1995, for production of transcripts pursuant to 28 U.S.C. 1415.]

[13 The evanescent consideration paid this issue by the District Court is reflected by the fact that counsel in Thomas I never even filed the opposition required, if not by the Rules, by the Court's Order. Thomas I, Record 105. Further, in its Memorandum dismissing Thomas I (Thomas I, Record 113), the District Court made absolutely no reference to appellant's motion to consolidate.]

[14 The lower Court parenthetically noted that, on August 23, 1995, "a final judgment ha(d) been entered in Thomas I" (Record 47, pg. 8), but the significance of that fact is unclear, and appellees do not rely upon it.]

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that would warrant consolidating these two cases." Reply, pgs. 7 and 8.

Appellees "concede that Thomas 1 consists of an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), alleging constitutional violations from appellant's presence in Lafayette Park." Reply pg. 7. Nor, correctly, do appellees dispute that this also is an action under Bivens (Record 1, pg. 1), or that both cases seek injunctive relief from the allegedly arbitrary enforcement of various minor regulations against appellant for the exercise of various constitutionally protected rights. Record, 1, Counts 11 - 14.

Against these common issues appellees argue, "appellant's claims in Thomas I relate to his activities in Lafayette Park, including his challenge to the manner in which the Park Police (and the United States) is enforcing its signs and structure regulation.... None of these issues is present in the current case." Parentheses added, see, Thomas I, Record, 1. [15] Any suggestion that the instant complaint may not involve precisely the same sign that was central Thomas I flies in the face of the Record. In dismissing this case the District Court specifically found:

[15 Appellees incorrectly argue, "the defendants in Thomas 1 consist of the United States Park Service, two Park Police officers, and a Park Service employee...." Reply, pg. 7. This contention ignores the fact the United States is also a named defendant in both cases.

Federal appellees contend that "the instant case involves action by the United States Secret Service in restricting vehicular access to certain streets surrounding the White House Complex," and make no reference to the involvement of District of Columbia appellee Radzilowski. Instead, appellees apparently rely on the inference that appellee Radzilowski's actions had no connection with federal appellees' actions. This is an inference which this Court should not permit. If not for federal appellees' imposition of restrictions on the street, there would have been on involvement between appellee Radzilowski and appellant.]

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"(T)he regulation leaves alternative channels of communication open to the Plaintiff. The Plaintiff maintains his presence in Lafayette Park. He is not prohibited from displaying his sign and seat structure there, or from relaying his message in any manner in Lafayette Park or the restricted portion of Pennsylvania Avenue, [16] as long he complies with reasonable time, place, and manner restrictions." Record at , 46, pg. 16.

This exact same sign was integral to both cases. The only evidence regarding the sign in either this case or Thomas I are appellant's sworn declarations [17] which attest to the fact that the sign was in compliance with the "time, place, and manner restrictions.".[18] On the evidentiary Record of both cases, it must be assumed that

[16 It is not clear to what the Court refers with the words, "or the restricted portion of Pennsylvania Avenue." Appellant would guess this is an allusion to appellee Radzilowski's unclear contention that certain signs are permissible in that section of Pennsylvania Avenue where appellee Radzilowski arrested appellant, and that appellee arrested appellant not because appellant had a sign, but rather, taking appellee's words literally, because, in appellee's opinion anyway, appellant had the wrong kind of sign (i.e., one that could not "get out of the street very quickly" Record 9, pg. 33). NOTE: Appellee Radzilowski's uninformed innuendo about how quickly the sign (structure, barrier, whatever) can "get out of the street," is also contested by the opinion of people with experiential knowledge about how readily the sign can be moved. Record at 31, Undisputed Facts, ¶ 38, and Declarations cited.

But it is not entirely clear that appellee Radzilowski's words should be favorably credited at all. Evidence in the Record appears to contradict appellee Radzilowski's words. A videotape exhibit (dismissed by the District Court as "moot" [Record 46, pg. 2]), shows, in fact, appellee Radzilowski actually did have "a problem" with a person carrying a sign in the street, and that that person took his sign "out of the street very quickly," after being threatened by appellee Radzilowski. Record at 30 (Plaintiff's Motion for Judicial Notice of Exhibits, Exhibit V.T. (videotape), Segment 9, @ 8m 58s), see also, Record at 31, Undisputed Facts, ¶¶ 39, 40.]

[17 Record 30, Exhibit 33, Declaration of William Thomas March 31, 1995, see also, Thomas I, Record, 1, Declaration of William Thomas, Exhibit 1 (Letter to Richard Robbins), Record, 99, Declaration of William Thomas]

[18 In Thomas I, appellees only attempted to portray appellant's sign as a violation of the regulations by submitting a letter, written by Randolph Myers. The District Court correctly refused to consider Mr. Myers' "letter at any stage in the proceedings unless and until it is submitted in a form which has evidentiary value," (Thomas I, Record (Order, July 3, 1995), 88, pg. 7).

However, in response to counsel's submission of Mr. Myers' letter, appellant filed two separate Motions for Sanctions. Thomas I, Record, 40 and 95. Rather than investigate the factual basis of appellant's claims for sanctions, the Court denied the first motion "without prejudice to the right to renew the same at the end of the proceedings in this case" (Thomas I, Record, 47 [Order February 8, 1995], pg. 9), and denied the second motion "without prejudice, reserving the right of the Plaintiffs to refile the same following exhaustion of any and all appeals." Thomas I, Record, 88 (Order July 3, 1995), pg. 3.]

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appellant's sign did not violate the applicable regulations.

Notwithstanding the well-established principle that "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff" (Ramirez de Arellano v. Weinbergher, 745 F.2d 1500, 1506 (D.C. Cir. 1984)), and appellant's repeated pleas for an evidentiary hearing to determine whether the sign violated any applicable regulations, the District Court held no evidentiary hearing to make that determination in either case. Similarly, in Thomas I the Court failed to factually determine the actual dimensions of appellant's sign. Thus, it could not find that the sign violated any valid restriction and merely opined, "the officer was entitled to official immunity" because "plaintiffs had not asserted that their sign did not fall within .... statutory bans." Thomas I, Record 73 (Order, April 12,, 1995), pgs 14, 15.

In turn, this contradictory judicial decision has created a situation where, on the strength of the Court's finding that "plaintiffs had not asserted that their sign did not fall within .... statutory bans," appellees have threatened appellant with arrest because appellant displayed his sign in the exact location where the District Court also ruled appellant "is not prohibited from displaying his sign ... in Lafayette Park," long the

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premier public forum in the known universe. [19]

At the risk of being repetitious, this is not the first time "national security" has attempted to steamroll fundamental human rights in this world-renowned forum.

"For instance, in a "Position Paper' dated July 24, 1967, the Secret Service stated its strong belief:
"'that the continuation of picketing and demonstrating by protest groups in front of the White House constitutes a threat to the safety of the President of the United States and that this activity should not be permitted.' [cite omitted].
'Of course it is understandable that those charged with Presidential safety would prefer, as Judge Hart put it, to take the 'precautions of a dictator' to shield him (or the White House complex) from danger. (Finding 23), A Quaker Action Group v. Morton, Civil Action No. 688-69 (DDC August 22, 1973). This, of course, is simply not possible in a democracy, for the President cannot be kept in a steel room away from the public. We would observe, however ... testimony from the Assistant Director for Protective Intelligence for the Secret Service who rated the White House as virtually the safest place for the President. (Tr. at 164)." A Quaker Action Group v. Morton, 516 F.2d 717, ftn. 40 (1975) (parentheses in original, [brackets added]).

As noted (supra), appellees should not be unaware that this is also "an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), alleging constitutional violations from appellant's presence in Lafayette Park." Reply, pg. 7.

Repetitiously, "bomb-laden vehicle" is the very same rationalization appellees employed in their penultimate successful foray against the First Amendment in Lafayette Park under the banner of "presidential security." ERA Vigil v. Clark, 746 F.2d 1518, 1520 (1994).

Clearly, we have the outstanding common elements of parties (the United States, by and through disparate enforcement agencies), common ground (Lafayette Park),

[19 Record at, 46, pg. 16, compare, Appellant's Motion for a Stay Pending Appeal, Thomas, et. al. v United States, et. al., U.S.App. No. 95-5340, filed October 30, 1995.]

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common issues (appellant's signs and constitutionally protected expressive activity), common allegations (Bivens, and the suppression of constitutionally protected expressive activity), common defenses (official immunity and bare arguments that "it's obvious" appellees haven't done anything inappropriate or illegal), and a history of, if not hostility toward, at least incremental erosion of, expressive activity by appellee United States (by and through the Secret Service, and DOI/ Park Police). To be just and knowledgeable, these elements should be consolidated with the honorable tradition 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).

Given this commonality of elements and tradition, the District Court noted that,

"According to the Plaintiff, the Court's Opinion stands for the proposition that government officials 'are free to do whatever they like.''"[20] Record, 47, pg. 4.
The Record testifies this "proposition" enjoys a measure of confirmation from a public opinion that appellees' swift maneuver of May 20th was "a situation where they

[20 Incredible as appellant's proposition may seem, appellees' own Background Review (Record at 10, Exhibit B) clearly supports an inference that the Secret Service cannot always be trusted not to "operate above the law." "(W)hen the Secret Service detailed operatives to the White House for the first time in the spring of 1894, it was exceeding its mandate." Record at 10, Exhibit B, pg. 71. "With the expiration of the emergency war fund these activities once again exceeded the Secret Service's statutory authority." Id., pg. 73. "Although these activities were generally acknowledged and accepted, they continued to exceed the Secret Service's statutory mandate." Id., pg. 74. "Law thus caught up with reality as the Secret Service finally received express funding to preform the Presidential security function it had assumed twelve years earlier." Id., pg. 76.]

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acted in the stealth of night. A rather outrageous and improper situation." [21] Still, this was a proposition summarily discarded below on the theory that appellant "lacks standing" to bring this suit. Id.

Law invariably changes. Perhaps the law will change so the changes appellees wrought on May 20th will become accepted as "the law." Perhaps concrete barriers around free and open parks are rational. But, in a democracy, any "law" imposed by brute force, and in violation of existing law, can only have been illegally promulgated. Absent factual review, symbolically speaking, appellees blitzkrieg actions of May 20, 1995 may well prove to be to tyranny what the Boston Tea Party was to independence. Appellant is disappointed by the fact-finding process below because, he feels, the District Court has somehow slipped from the bedrock fact that:

"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).
WHEREFORE, appellant respectfully submits that appellees' Reply to Appellant's Opposition to Federal Appellees' Motion for Summary Affirmance should be not summarily affirmed.

Respectfully submitted,

________________________________
William Thomas, appellant, pro se.
Appellant, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757