Motion to Reconsider - September 16, 1988

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAM THOMAS,                 
               Plaintiff,

             v.                     Civil Action No. 84-3552

UNITED STATES, et al .
               Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE ORDER
FILED BY THE COURT ON SEPTEMBER 16, 1988

I. INTRODUCTION

Frankly speaking, the Court's Order of September 16, 1988 raises a possibility that the Court has overlooked or forgotten certain significant factors of this case. For the record, plaintiffs will sketch their rendition of the pivotal points on the docket sheet. Should the Court wish to skip the "History" it may go directly to "Several Points," which begin at page 4.

II. HISTORY OF THE CASE

A) Complaint filed, November 21, 1984.

B) Memorandum and Order filed, June 3 1985, J. Oberdorfer:

"Plaintiff brings this action to enjoin the defendants from interfering with the `reproachful vigil' that he maintains in the vicinity of the White House and Lafayette Park.... The federal defendants correctly point out that the plaintiff can no longer challenge the Department of Interior regulations under which he and his fellow protestors have been arrested... (Cites omitted.) [1]

"Nevertheless, many of the issues raised in plaintiff's voluminous pro se complaint cannot be resolved by the pending motions.... These claims have been summarized in a `Clarification of Complaint' filed by the plaintiff at the Court's request.

"Plaintiff alleges that both federal and local law enforcement officials have committed unconstitutional excesses in their efforts to arrest plaintiff pursuant to local statutes and DOI regulations. In particular, plaintiff claims that his literature, tools, signs, and camera have been improperly seized and destroyed by Park Service and District of Columbia Police. See, e.g., Complaint at Paras. 40, 46, 87, 93, 112, 117, 118 & 133. He asserts that law enforcement officers have violated his constitutional rights by using excessive force during his arrests. See, e.g., Complaint Paras. 30, 69, 93, 132. Plaintiff further alleges that the police have unlawfully detained him on several different Sundays by arresting him on Saturday nights and failing to book him expeditiously. See, e.g., Complaint Paras 87, 93, 97 & 131. The complaint contains numerous other allegations of police misconduct, and plaintiff further claims that these acts were the product of a conspiracy pursued by federal and local officials.

[1 As of June 3, 1985 the Lafayette Park "sign size regulation" (inter alia, pgs. 6-8), had not yet been promulgated. ]

"Plaintiff's complaint states a substantial federal claim. The fact that the constitutionality of the DOI regulations is well-settled does not prevent the plaintiff from claiming, pursuant to 42 U.S.C. Section 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (footnote omitted), that defendants have violated his constitutional rights in the course of enforcing the regulations and the law of the District of Columbia." Ibid, pages 1-3.

C) Amended Complaint filed October 19,1985.

D) Memorandum and Pretrial Order filed June 5, 1986, LFO:

"This action is now before the Court on plaintiff's Amended Complaint (filed Oct. 19, 1985).... By Order of April 9, 1986, plaintiff was required to complete a Statement of Claim regarding each named defendant. Plaintiff affirms that his case `is about a conspiracy to deprive [him] of [his] civil rights, in violation of federal law.' Statement of Claim (filed April 22, 1986 quoting Memorandum to the Court at 1 (filed April 2, 1986)). Plaintiff lists each defendant and each act allegedly undertaken by that defendant in furtherance of the alleged conspiracy. This detail provides defendants with the definite statement required by Fed. R. Civ. P. 8.... (parentheses in original)

"Plaintiff's Statement of Claim, as well as the allegations previously found to be potentially meritorious, indicate that plaintiff's claim involves two discrete issues.

"1) Whether any of the named defendants conspired to deprive plaintiff of his civil rights, in violation of federal law; and

"2) Whether any of the defendants individually committed any unconstitutional acts toward plaintiff, specifically whether any defendants `committed unconstitutional excesses in their efforts to arrest plaintiff pursuant to local statutes and DOI regulations.' Memorandum and Order at 2 (filed June 3, 1985).... (parentheses in original)

"Because plaintiff's claims involve numerous defendants and he is proceeding pro se, it is important that discovery be closely supervised. This action will be referred to United States Magistrate Arthur Burnett for supervision of discovery and pretrial proceedings.... Depositions should also be taken under the Magistrate's supervision." (Id, pgs. 1 thru 3)

"ORDERED: that the trial shall commence at 9:30 A.M. on October 20, 1986...

"ORDERED: that each of the parties shall file, on or before September 12, 1986, a trial brief...." Id, pg. 4.

E) Plaintiffs' trial brief was filed on September 22, 1986. (Defendants have yet to file a trial brief.)

F) ORDER filed September 26, 1986, J. Oberdorfer, referring pending motion for summary judgment to Magistrate Burnett for hearing and recommendation.

G) ORDER filed November 8, 1986, Mag. Burnett, resetting trial to December 15, 1986.

H) 12/8/86 trial reset for 1/26/88, J. Oberdorfer.

I) Magistrate Burnett's Memorandum Opinion, Report Recommendation (hereinafter, Mag's Memo) filed January 13, 1987:

"Before the undersigned U.S. Magistrate upon reference from the Court (Oberdorfer, J.), is the motion of federal defendants (footnote omitted) for summary judgment pursuant to Rule 56(b), Fed. R. Civ. P., with respect to plaintiff's common law tort claims of assault and battery, false imprisonment and unlawful arrest, 42 U.S.C. Sections 1983 and 1985 civil rights claims, and claims under the First, Fourth, Fifth, Sixth and Ninth Amendments, alleged by plaintiff, Mr. William Thomas." Id, pg. 1.

"(P)laintiff's principal contention is that these supervisory officials conspired among themselves, and with other federal agents and officers, in an effort to have him unlawfully arrested, harassed and intimidated in order to discourage plaintiff from continuing the free exercise of his First Amendment rights...." Id, pg. 4.

"The Magistrate heard agrument of counsel on these and other allegations at a hearing held on November 14, 1986 at which plaintiff appeared pro se.... The Magistrate has since then again reviewed ... the testimony taken upon deposition in the presence of the Magistrate of ten (10) [government] witnesses in the case, as well as relevant portions of the court record. After consideration of these matters ... the Magistrate concludes that the motion of the federal defendants must be denied. [Brackets added.]

"... (T)he burden is on the federal defendants to show that there are no genuine issues of material fact ... Adickes v. S.H. Kress, Co., 398 U.S. 144 (1970).... Here, material facts are in dispute involving whether supervisory officials and officers acted in bad faith, either in a conspiracy or by combined action, to deprive plaintiff of his First Amendment rights which precludes granting summary judgment for the defendants. Id, pgs. 5 & 6.

"(T)here remains an incredible number of incidents stemming from (plaintiffs') arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Id, pgs. 8 & 9. (Parentheses substituting.)

"Having carefully and thoroughly reviewed plaintiff's pleadings, the Magistrate concludes that there exists sufficient troublesome incidents raising genuine issues of material facts in dispute in this case, which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Id, pg. 14.

J) January 16, 1987, Pretrial conference set for 1/20/87.

K) January 20, 1987, further status set for 2/5/87.

L) February 5, 1987, schedule for motions set.

M) ORDER (filed 4/15/87) setting status conference on May 1, 1987.

N) April 30, 1987, telephone call from J. Oberdorfer's clerk to inform that status conference set for 5/1/87 was "indefinately" postponed. No further hearing has been held.

O) ORDER filed November 30, 1987, Oberdorfer J., denying plaintiffs' Motion to Consolidate 84-3552 and 87-1820.

P) Memorandum and Order filed February 16, 1988, dismissing the complaint against the Washington Times defendants in 87-1820 and CONSOLIDATING the remaining claims with those in 84-3552.

III. SEVERAL POINTS

Finally, on September 16, 1988 the Court entered a Memorandum (hereinafter "Ct's Memo") and Order dismissing the consolidated action, in its entirety, "without prejudice." Id. pg. 25.

Plaintiffs are disappointed, but not amazed. Fully cognizant of the facts that the Court is very busy, that there has been a lot of paper filed in this case, and that everybody makes mistakes, plaintiffs will, as briefly as possible, outline several points in hopes of moving the Court to reconsider its decision of September 16, 1988.

A) GENUINE ISSUES OF MATERIAL FACT IN DISPUTE

Because it is axiomatic that a complaint should not be dismissed unless there "exists no possible combination of facts upon which relief might be granted," plaintiffs will not even trouble the Court with legal authorities.

The Court does note that:

"Plaintiffs' experience proves that (purported) violations of the Lafayette Park regulations results in repeated deprivation of liberty through arrest, seizure of property, (assault, destruction of property, numerous other alleged common law torts), and, perhaps most seriously, deprivation of access to an important public forum for the exercise of First Amendment rights." Ct's Memo, p. 19 (PARENTHESES ADDED).

Yet September 16th's twenty-five page Memorandum makes absolutely no mention of "alleged constitutional excesses" (June 3, 1985), "potentially meritorious" claims (June 5, 1986), the "common law tort claims," or the "incredible number of incidents ... on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct," which led the Magistrate to "conclude() that there exists sufficient troublesome incidents raising genuine issues of material facts in dispute ... which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Mag's Memo, pgs. 9 and 14.

Prior to a resolution of these and other outstanding factual disputes, it might seem, dismissal of this suit -- even "without prejudice" (Ct's Memo, pg. 25) -- is a poor decision at best.

There is no doubt that the Court has properly construed at last some of the factual allegations of this litigation, e.g.:

"Pro se plaintiffs ... sue President Reagan, (Robert Bedell, Office Of Management and Budget,) Secretary of the Interior, and numerous Interior and Park Police officials for injuries allegedly arising out of plaintiffs' (religious exercise) and communicative activities in Lafayette Park, Washington, D.C...." Ct's Memo, pg.1 (PARENTHESES ADDED).

But the Court still construed at least some of the factual allegations in a light very flattering to the defendants, e.g.:

"It is undisputed that plaintiffs have been repeatedly warned, cited, arrested, and convicted for violating one or another of these regulations. Plaintiff Thomas alone has been tried for such infractions in this Court at least a dozen times since 1982. See Federal Defendants' Motion to Dismiss or for Summary Judgment...." Ct's Memo, pg. 4.

Magistrate Burnett, who did not rely completely on the Federal Defendants' representations, reported:

"In his Second Declaration, filed September 22, 1986, William Thomas has stated that by his reckoning, he has been arrested twenty-five (25) times since 1981 for performing symbolic acts in his demonstration activities. He claims only seven (7) arrests have resulted in convictions." Magistrate's Memorandum Opinion, Report & Recommendation, January 13, 1987, pg. 19, Appendix A.

As reflected in Magistrate Burnett's "Appendix A" (Mag's Memo, pgs. 19 and 20), he "compiled (a) chronology of (plaintiff Thomas') arrests, charges and dispositions" from the Magistrate's own "review of the court file." According to the Magistrate's count there were twenty--four (24) arrests and five (5) convictions. [2]

Other significant factors which this Court failed to mention are plaintiffs' allegations --- undisputed on the record --- that certain defendants perjured themselves in testimony to support what would otherwise have been a legally insupportable regulation (e.g., Amended Complaint, para 87), and that defendants, or their agents, have given false testimony in proceedings which resulted in those relatively few convictions (e.g., id. para. 130(e)).

[2 Conscientiously, Magistrate Burnett also included an "Appendix B," which detailed some of many "isolated incidents alleged by plaintiff not involving arrests relevant to th(e) Motion for Summary Judgment." Mag's Memo, pg. 21.]

B) CONSTITUTIONALITY OF THE "LAFAYETTE PARK REGULATIONS"

In another example of entertaining defense representations without recourse to factual evidence, the Court wrote:

"(t)he challenged three-foot sign attendance requirement ... was upheld against constitutional challenge in this Court in litigation brought by several of these same plaintiffs in United States v. Musser, Cr. No. 87-157 (D.D.C. June 17, 1987) (Richey, J.). See Federal Defendants' Opposition to Plaintiffs' Motion for a Preliminary Injunction and a Temporary Restraining Order at 4." Ct's Memo, pg. 7.

First, "several of these same plaintiffs" could not possibly have "brought" United States v. Musser. Of course, only the United States may bring criminal actions. As it happened "these same plaintiffs" did, during the same historical period as Mr. Musser, use Lafayette Park as a public forum. Though liable to persecution under the same unnecessary regulation (see e.g., Plaintiffs' Motion for Joinder of Claims against Lt. Irwin filed November 21, 1986) none of "these same plaintiffs" was even party to United States v. Musser.

Second, while Richey, J. did file an unpublished Order, which touched on the challenged regulations (see, Exhibit A, hereto), there are at least three strong reasons that counsel against the adoption of Judge Richey's rationale as binding law:

1) The "Lafayette Park Regulation," of which "(t)he chal- lenged three-foot sign attendance requirement" is only one aspect, comprises a major thrust of this Complaint. See Amended Complaint, pgs. 29-42, SEE ALSO, Plaintiffs' Opposition to Federal Defendants' Motion for Judgment on the Administrative Record, filed September 22, 1986. A few important factors well removed from "three feet" -- and totally unexamined by J. Richey -- are the "sign size requirement" (e.g., Amended Complaint, para. 114(c)(5)), the "structures requirement" (id, para. 114 (c)(7)), and the "speaker's platform requirement," (id, para. 114 (c)(8)). SEE, below, pg. 9, ftn. 3.

2) Judge Richey held, "(t)he rule protects the aesthetics of Lafayette Park by prohibiting persons from abandoning or not attending their signs." Exhibit A, J. Richey Order, at 2.

This assumption is contradicted by defendants' own written words. In a letter dated March 5, 1985, defendant Robbins wrote:

"(W)e would note that the majority of the demonstrations now occurring in Lafayette Park are longterm vigils which continue 24 hours a day. When one of the participants of these demonstrations departs the area, another demonstrator takes his or her place in watching the group signs. Therefore, a regulation prohibiting unattended signs would be of limited use in Lafayette Park." Attached hereto, for the Court's convenience, as Exhibit B. Previously Submitted, e.g. Plaintiff's Response to News World Communications Opposition to Plaintiffs Motion to Consolidate filed October 28, 1988, 87-1820, Exhibit 64. SEE ALSO, Amended Complaint, para. 114(c)(11)

3) "The (challenged) rule is also tailored to serve the substantial interest in the security of the White House, high government officials and the public." Exhibit A,pg. 2.

J. Richey has apparently confused the "White House sidewalk regulation" (at issue in White House Vigil for the ERA v. Clark, 746 F.2d 1518 (D.C. Cir. 1984)) with the "Lafayette Park sign regulation." Which is not surprising. J. Richey saw no evidence, heard no witness, and so could speak no infallible word.

Here plaintiffs, with defendants' assistance, may enjoy the unusual situation of proving a negative -- there was NEVER ANY CLAIM that the "Lafayette Park sign regulations" should further "security." To mitigate those regulations defendants published rulemakings in the Federal Register on August 20, 1985, and March 5, 1986. Nowhere in the those publications, thereby proving the negative, did defendants claim that 36 CFR 50.19 (e)(11)(12) was intended to promote "security of the White House, high government officials, (or) the general public."

Memorandum Continued

Contents

Case Listing --- Proposition One ---- Peace Park