WILLIAM THOMAS,                         RECEIVED
          Plaintiff                     SEP 10   10:23  pm 97

     v.                            Civil Action No. 97-0712 (TFH)

CHRISTIAN STANTON, et al.,
          Defendants

Plaintiff William Thomas opposes defendants’ partial motion to dismiss plaintiff’s claims against defendant Christian Stanton. First, this Court has jurisdiction over defendatn Stanton because, contrary to defendants’ argument, defendant Stanton was served on April 18, 1997 with the summons and a copy of the complaint. [1] Second, defendants’ assertion that plaintiff’s claims against defendant Stanton should be dismissed, on the basis of qualified immunity, for failure to state a claim upon which relief can be granted is premised entirely upon unsworn factual allegations which dispute the material factts alleged by plaintiff in his verified complaint. [2] Under these circumstances, no summary dismissal may be had. Defendatns’ partial motion to dismiss should be denied.

[1. Plaintiff submits simultaneously herewith a motion to correct the docket entries in this case to reflect service upon defendant Christian Stanton on April 18, 1997, according to the Proof of Service filed June 20, 1997.]

[2. Plaintiff filed a verified cl\omplaint. Defendants have submitted no sworn statements in the form of affidavits or otherwise, and no documents of any kind (other than the docket entries relevant only to the personal jurisdiction issue) in suppoort of their motion to dismiss.]

As set forth in his verified complaint, ¶¶6-13, plaintiff alleges that U.S. Secret Service Officer Christian Stanton assulted and arrested him without justification on April 6, 1996. Following a verbal exchange between Ofc. Stanton and Mr. Thomas and further conversation among Ofc. Stanton, two other uniformed officers and Mr. Thomas, Complaint at ¶6, Mr. Thomas stood on the north side of Pennsylbania Avenue across from the White House and conversed with a group of people in froont of the White House o the south side of Pennsylvania Avenue. Complaint at ¶7. As Mr. Thomas recited the First Amendment to the U.S. Constitution, Ofc. Stanton ran across Pennsylvania Avenue toward Mr. Thomas; shouted repeatedly to him to "shut up," pushed, grabbed, tugged, and pulled Mr. Thomas; thrust him face down toward the ground; held him down by leaning or kneeling on Mr. Thomas’ back; picked him up off the ground and then thrust him down onto the ground, falling on top of Mr. Thomas’ back. Id. Mr. Thomas landed on the brick sidewalk surface, striking his head and chest against the bricks, immediately causing his nose and forehead to bleed and knocking his eyeglasses from his face. Id.

Thereafter, additional afficers arrived and transported Mr. Thomas to the Metropolitan Police Department police station for the Second District in Washington, D.C., where Ofc. Stanton prepared a report charging Mr. Thomas with assult on a police officer and disorderly conduct. Id. At ¶¶8--9. U.S. Secret Service officer Sgt. Hutchinson and Ofc. Stanton later placed handcuffs on Mr. Thomas’s wrists behind his back in an improper manner, causing Mr. Thomas’s wrists to twist behind his back and causing Mr. Thomas to experience pressure form the cuff on his right wrist resulting in numbness and soreness in Mr. Thomas’s right wrist and hand. Id. At ¶10. Officers transported Mr. Thomas to Central Lockup at the District of Columbia Superior Court building, where he remained until approximately 10:00 a.m. on Monday, April 8, when he appeared in court and was told by a judge that the charges were dismissed. An escorting officer returned Mr. Thomas to the Lockup unit where he remained until approximately 5:00 p.m. on April 8, at which time an officer allowed him to leave. Id. At ¶11.

Mr. Thomas alleges that, as a result of the acts of the officer(s), he suffered pain and suffering, and injuries including a bloody nose, an abrasion on his forehead, and pain in his head and chest. He also suffered injuries including soreness and numbness of his right wrist and hand for approximately six weeks following the incident, regular shooting pains from his right elbow to his right thumb for approximately two weeks following the incident and intermittently for approximately four more weeks, and numbness of his right thumb for approximately six months following the date of the incident. Id. At ¶12.

Defendant Christian Stanton was served with a summons and copy of the complaint in this case on April 18, 1997. See Motion to Correct Docket Entry filed simulataneously herewith; and see Proof of Service nad Declaration of Service filed June 20, 1997. As defendants point out in their motion at 4, service upon the Attorney General and the U.S. Attorney does not satisfy the requirement of service upon defendant Stanton. Plaintiff does not claim otherwise. As plaintiff’s Proof of Service makes clear, and as the docket entries in this case should be corrected to reflect, defendant Stanton was properly served in his individual capacity on April 18, 1997 by personal delivery of the summons and complaint to a person authorized to accept service of process on his behalf.

The Court’s exercise of personal jurisdiction over defendant Stanton is proper. To the extent that defendatns’ partial motion to dismiss relies upon the erroneous docket entries, defendants’ motion should be denied.

Defendants seek dismissal of Mr. Thomas’s claims that defendant Stanton violated his constitutional rights under the First and Fourteenth Amendments, Complaint at ¶¶16-17, [3] on the basis of qualified immunity. According to defendants’ own argument, Def’s Memo. At 5, whether defendant Stanton is entitled to qualified immunity depends generally upon whether his actions violated clearly established law or were objectively reasonable. Harlow v. Fitzgerald, 457 U.S. 800 (1982). A defendant who violates clearly established constitutional rights is not entitled to qualified immunity. Id. In his verified complaint, at ¶¶6-12, plaintiff alleges that defendant Stanton assulted and arrested him in violation of his clearly established rights to free speech under the First Amendment and to freedom froom unreasonable detention, search and seizure under the Fourteenth Amendment. Defendants, based upoon unsworn factual allegations in their partial motion to dismiss, argue that defendant Stanton is entitled to qualified immunity because he did not violate plaintiff’s clearly established rights. [4] Defendant’s disputed version of the facts, however, is not controlling in the context of a motion to dismiss for failure to state a claim upon which relief can be granted. In ruling on such a motion, the complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which wwould entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-56 (1957). Under well established principles, on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must presume all factual allegations of the complaint to be true and grant all reasonable

[3. Plaintiff’s claims against Officer Stanton are limited to his constitutional claims, Complaint at ¶¶16-17, all others being against the United States under the Federal Tort Claims Act.]

[4. Defendants’ lengthy discourse on permissible regulation of free speech and on the extent of Fourth Amendment protections are laargely irrelevant under these circumstances. Whether or not any of defendants’ arguments concerning the scope of plaintiff’s constitutional rights and protections are meritorious, all of their arguments are based upon disputed material facts.

Inferences in favor of the non-moving party, and may only dismiss in the absence of genuine dispute as to any material fact, where the moving party is entitled to judgment as a matter of law. E.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Nixon, 606 F.2d 1183, 1187 (D.C. Cir. 1979).

Assuming, as we must on a motion for summary dismissal, Mr. Thomas’s version of facts to be true, it is clear that Mr. Thomas states claims on which relief may be granted. [5] According to his verified complaint, Mr. Thomas recited the preamble to the Declaration of Independence and the First Amendment to the U.S. Constitution; he engaged in discussion with passerby,, projecting his voice so that he could be hear;[6] and he had a discussion with Officer Stanton and other officers. Complaint at ¶6. In short, Mr. Thomas availed himself of the "rich variety of expressive activities’ allowed in Lafayette Park, White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1528 (D.C. Cir. 1984), even under defendants’ analysis. See Def’s Memo. At 13.[7] In response, Officer Stanton assaulted and arrested Mr. Thomas. Complaint at ¶7-9. Nothing in Mr. Thomas’s verified complaint supports defendants’ allegations that "Ofc. Stanton certainly had probable cause to arrest him." Def’s Memo. At 17. Only defendants’ inflammatory characterizations of Mr. Thomas’s behaviou may support such a claim, but they are of no import, as this Court must asume to be true plaintiff’s allegations for purposes of this motion.

[5. Defendants’ nod to the summary dismissal standard, Def’s Memo. At 2, fn. 2, is disingenuous. Their memorandum is littered with exaggerations, mischaracterizations, and misstatements of the factual allegations presented in plaintiff’s verified complaint, and it is upon these disputed facts that they base their arguments in support of dismissal.]

[6. Nothing in plaintiff’s complaint supports defendants’ characterization of plaintiff’s behavior as "yelling," "screaming," "openly belligerent," or "encourag[ing] a shouting match." Def’s Memo. At 17.]

[7. Plaintiff notes, with interest, that White House Vigil specifically provides, inter alia, that demonstrators may "shout" and "appeal to passerby." Defendant’s unsupported and inflammatory exaggerations of plaintiff’s behaviou are apparent attempts to place him outside the zone of protected speech described in White House Vigil and other cases.]

Contrary to defendants' assertions, Mr. Thomas did not "engage in any tyype of disruptive conduct with impunity," Def's Memo. At 8, or "intentionally provoke a breach of the peace," Id. At 13. Mr. Thomas's verified complaint does not allege facts in support of defendatns claims that "plaintiff disobeyed Officer Stanton's orders, created a disturbance and ultimately engaged in a fight with Officer Stanton." Def's Memo. At 1. Nor did Mr. Thomas yell, scream, ignore direct orders of an officer, engage in an "imbroglio" with Ofc. Stanton, or assult Ofc. Stanton. Def's Memo. At 2-3. Defendants simply do not claim that Ofc. Stanton's actions, as alleged by Mr. Thomas, were reasonable or did not violate clearly established statutory or constitutional rights. Nor do they claim that Mr. Thomas's actions, as alleged by Mr. Thomas, justified Ofc. Stanton's response. Rather, they allege a substantially different version of events and claim that their version supports summary dismissal.[8] This is plainly contrary to the established standard applicable to motions to dismiss. Conley, 355 U.S. at 45-46.

Plaintiff's verified complaint clearly states claims for relief against defendant Stanton. Defendants have made no showing to the contrary. Mr. Thomas is entitled to offer evidence to support his claim. Scheuer, 416 U.S. at 236. Defendants' motion should be denied.

No summary dismissal may be had under the circumstances present here. This Court has personal jurisdiction over defendant Stanton, genuine issues of material fact remain, and vieewing the facts in accordance with established principles on a motion for summary dismissal,

[8. For example, defendants state with respect to Mr. Thomas's allegation that Ofc. Stanton said "stop resisting" during the assault on Mr. Thomas, that "although the plaintiff claims he was not resisting; based on his remarks to the plaintiff, Officer Stanton certainly believed otherwise." Def's Memo. At 17. This, of course, ignores the possibility that Ofc. Stanton may not be accurate, or that his response was unreasonable under the circumstances. Assuming Mr. Thomas's allegation that he did not resist to be true, Ofc. Stanton's remark should be viewed as suspect, rather than as suggestive of the constitutionality of his behavior, as argued by defendants.]

Defendant Stanton is not entitled to the defense of qualified immunity. Defendants' partial motion to dismiss should be denied.

Respectfully submitted,

_____________________
Alisa A. Wildins, D.C. Bar #440880
Gaffhey & Schember, P.C.
1666 Connecticut Avenue, N.W., Ste. 225
Washington, D/C/ 20009
202/328-2244

Counsel for Plaintiff

I HEREBY CERTIFY that a copy of the foregoing Plaintiff’s Opposition to Defendants' Partial Motion to Dismiss was served, via first class mail, postage prepaid, this 19th day of September, 1997 to:

Stacy M. Ludwig
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-806
Washington, DC 20001

_______________________
Alisa A. Wilkins