v.                    Civil Action No. 99-330 (GK)



In support of plaintiff's opposition to defendant Lombardi's motion for summary judgment and pursuant to Fed. R. Civ. P. 56 and the Local Rules of this Court, plaintiff submits the following Statement of Genuine Issues setting forth material facts as to which plaintiff contends there exists a genuine issue necessary to be litigated. Attached hereto as Exhibit A is the Declaration of Frank Wall, a witness identified in plaintiff's Verified Complaint expected to testify at trial. Attached hereto as Exhibit B are pages 5-8, 25-28, 40-47, 54-59, 85-88 from the Deposition of plaintiff William Thomas. 1/

1. The news crew did not have a tripod. Verified Complaint at para. 17, Wall Decl. at para. 13, Thomas Depo. at 6, 7, 26; Lombardi Decl. at paras. 17.

2. After the initial verbal exchange between Mr. Thomas and Ofc. Lombardi, Mr. Thomas conducted an interview with the news crew, which Ofc. Lombardi and other officers observed from a distance. Verified Complaint at paras. 7-9, Wall Decl. at paras. 3-5. Thomas Depo. at 26-28; Lombardi Decl. at paras. 12-16.

1/ Defendant Lombardi attached a copy of the Deposition to his motion; however, the copy provided to plaintiff's counsel was incomplete. Mr. Thomas therefore reattaches excerpted sections of the deposition which include the pages cited herein.

3. After the interview, Mr. Thomas sat down between his signs and read a newspaper. About 10-15 minutes later, Ofc. Lombardi walked toward Mr. Thomas. Verified Complaint at paras. 9-10, Wall Decl. at para.5, Thomas Depo. at 41, 44-45; Lombardi Decl. at paras. 12, 16-17.

4. Officer Lombardi kicked Mr. Thomas's accordion file containing paper literature. Verified Complaint at para.10, Wall Decl. at para.5, Thomas Depo. at para. 46; Lombardi Decl. at para. 22.

5. Officer Lombardi grabbed and shoved Mr. Thomas, causing the hot chocolate Mr. Thomas was holding to spill on Frank Wall. Verified Complaint at para. 13, Wall Decl. at para. 6, Thomas Depo. at 55-58; Lombardi Declaration at para. 22.

6. Mr. Thomas did not yell at Officer Lombardi, was not loud and boisterous, and did not create a disturbance drawing the attention of a crowd of people. Verified Complaint at 7-14, Wall Decl. at paras. 3, 5, 7 and 8; Thomas Depo. at paras. 27, 41-42; Lombardi Decl. at paras. 9-10, 12, 14, 17, 19.

7. Officer Lombardi's actions were substantially motivated by Mr. Thomas's thwarting of Ofc. Lombardi's attempt to stop Mr. Thomas's lawful exercise of his rights to speak to the news crew, and violated Mr. Thomas's right to free speech under the First Amendment to the U.S. Constitution. Verified Complaint at para. 19, Thomas Depo. at 85-88; Def's Stmt. of Material Facts at para. 1, Lombardi Decl. at para. 6, 19 and 23.

Respectfully submitted.

(signed) Alisa Wilkins
Alisa A. Wilkins, D C. Bar #440880
Daniel M. Schember, D.C. Bar #237180
Gaffney & Schember, P.C.
1666 Connecticut Avenue, N.W., Ste. 225
Washington, D.C. 20009
Counsel for Plaintiff