UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
v. Civil Action No. 99-0330 (GK)
OFC. DAVID LOMBARDI,
PLAINTIFF'S OPPOSITION TO DEFENDANT LOMBARDI'S
MOTION FOR SUMMARY JUDGMENT
Defendant Officer David Lombardi's motion forsummary judgment
should be denied because (1) there are material facts in dispute
which should be determined by a jury at trial, and (2) defendant
Ofc. Lombardi is not entitled to qualitifed immunity because,
as this Court concluded in its April 19. 2000 Memorandum Opinion,
his conduct, as alleged by plaintiff in the sworn complaint, violated
clearly established law under the First Amendment to the U.S.
Constitution, and defendant Lombardi offers nothing new to alter
the Court's conclusion.
In plaintiffs verified complaint, 6-17, Mr. Thomas alleges
that U.S. Park Police Officer David Lombardi arrested him on November
4, 1996 in Lafayette Park in the District of Columbia without
justification and in retaliation for Mr. Thomas having conducted
a First Amendment-protected news interview in the Park.
Prior to the arrest, Ofc. Lombardi interrupted a news crew
that was preparing to interview Mr. Thomas and, after initially
telling the crew they could not use their camera in the park,
retreated to a position approximately 15 feet away from Mr. Thomas
and the news team. Another Park Police officer, Ofc. Gonzalez,
also interrupted the news crew and, after asking Mr. Thomas repeatedly,
"What's your problem?" and threatening to "be right
on" Mr. Thomas if Mr. Thomas did anything, remained standing
near Mr. Thomas and the news crew. Verified Complaint at 8.
The news crew cut short their interview with Mr. Thomas
after four or five U.S. Secret Service uniformed officers joined
Ofcs. Lombardi and Gonzalez and stood nearby, watching Mr. Thomas
and speaking in low voices to one another. When the news crew
left, Mr. Thomas sat down between the signs he attends in the
Park and began reading a newspaper. Id at 9.
About 10 minutes later, Ofcs. Lombardi and Gonzalez approached
Mr. Thomas, who remained seated between his signs. Ofc. Lombardi
used his foot to tap an accordion file containing paper literature,
asked Mr. Thomas if the file was his, and told Mr. Thomas to take
his file and get out of the Park. Ofc. Lombardi then told Mr.
Thomas that his signs did not belong to him and that he had to
leave the Park. Id. at 10. Ofc. Lombardi requested a transport
vehicle. Id. at 11.
Despite Mr. Thomas's belief that Ofc. Lombardi was wrong
to require him to leave, Mr. Thomas began to leave. He stopped
to speak to another individual in the Park. Id. at 11. Ofc. Lombardi
again told Mr. Thomas to "get out of the Park" and then
shouted twice at Mr. Thomas, "Get out of the Park, now!"
Id. at 12.Ofc. Lombardi shoved and grabbed Mr. Thomas, placed
handcuffs on Mr. Thomas's wrists, and arrested him for disorderly
conduct. Mr. Thomas subsequently was acquitted at trial. Id. at
Mr. Thomas's factual account is disputed by defendant Lombardi,
but supported by the testimony of witnesses expected to testify
at trial, including Frank Wall, whose Declaration
is appended hereto. See Plaintiffs Statement of Genuine Issues.
As this Court correctly recognized, Memo. Op. at 14 (Apr.
19, 2000), "[T]he sequence of events described in [plaintiffs
verified complaint], liberally construed, would allow a reasonable
jury to infer that Defendant Lombardi was motivated by retaliation
for Plaintiffs protected speech when he ordered Plaintiff to leave
the park, shoved him, and handcuffed and arrested him Plaintiff
did virtually nothing between his interview and the time that
Defendant Lombardi ordered him to leave the park, making it unlikely
that anything besides the interview had provoked
Defendant Lombardi to confront Plaintiff." The sole issue
before the Court now is whether or not Defendant Lombardi is entitled
to summary judgment on the basis of qualified immunity to protect
him from the claim properly stated by Mr. Thomas under the First
Amendment. Memo. Op. at 12. Having had an opportunity for discovery,
and relying solely on the deposition of Mr. Thomas and defendant
Lombardi's own self-serving affidavit, defendant Lombardi offers
nothing new in his motion for summary judgment to overcome the
concerns of the Court in its prior decision. Memo. Op. at 12-17.
Ofc. Lombardi's new motion does, however, make clear the existence
of material facts as to which there exists a genuine issue necessary
to be litigated, which are set forth in Plaintiffs Statement of
Genuine Issues appended hereto. Defendant Lombardi's motion for
summary judgment must therefore be denied.
1. Material facts are in dispute which should be determined
by a jury at trial.
Defendant Lombardi relies solely upon the self-serving
statement -- supported by his own sworn affidavit, but contradicted
by plaintiffs sworn complaint that [he] "did not take any
actions against the plaintiff on November 4, 1996, to retaliate
against him for engaging in any First Amendment activity."
Def's Stmt. of Material Facts. Defendant Lombardi admits the existence
of disputed facts, Def's Mem. in Support at 3, fn. 1, but claims
they are not material. Defendant Lombardi is wrong. His allegedly
undisputed "fact" is actually a statement of his desired
conclusion of the ultimate issue in this case. Upon the genuinely
disputed underlying factual allegations and evidence presented
in support thereof, see Plaintiffs Statement of Genuine Issues,
this Court cannot at this stage reach the same conclusion, but
must instead reserve that decision to the sound discretion of
the jury. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986).
In short, the case comes down to two very different versions
of fact. Ofc. Lombardi claims that he "wanted plaintiff to
leave the area because he was creating a disturbance" and,
ultimately, "placed plaintiff under arrest for disorderly
conduct because of his continual loud and boisterous conduct,
the crowd he had drawn, and his refusal to leave the park as requested."
Defs Mem. in Support at 5. He did so, he claims, "to avoid
a major disturbance in front of the
White House." Defs Mem. in Support at 6. According to
Mr. Thomas, however, there was no "loud and boisterous conduct,"
no "crowd," no "major disturbance." Mr. Thomas's
version is supported by the testimony of witnesses identified
in his verified complaint and expected to testify at trial, including
Frank Wall, whose Declaration is appended as Exhibit
A to Plaintiffs Statement of Genuine Issues attached hereto.
As Mr. Thomas has "identif[ied} aftlrmative evidence from
which a jury could find that [he] has carried [his] burden of
proving the [unconstitutional] motive," including his own
testimony and that of Mr. Wall, defendant Lombardi's motion must
be denied. Crawford-El v. Britton, 523 U.S. 574, 600 (1998).
The only other argument offered by defendant Lombardi is
his claim that plaintiff "specifically denied" that
Ofc. Lombardi arrested him for speaking with the news crew. Defs
Mem. in Support at 12. Although Mr. Thomas maintains that it is
for the jury to decide the ultimate issue of defendant Lombardi's
motive, defendant Lombardi's excerpt of Mr. Thomas's deposition
mischaracterizes the testimony, which provides in pertinent part:
Q What is your basis for [the] statement [that Officer
Lombardi ... was substantially motivated by ... attempting to
stop your lawful exercise of your First Amendment rights]?
A. Well, I guess it's sort of like inference I suppose,
based on the fact that he -when he noticed that some people with
a camera and a microphone were getting ready to interview me,
he told them you can't use that camera in the park. Well, you
know, since there's no law against using a camera in the park,
I inferred that he was just trying to give me a hard time. Then
when we did the interview and I sat down and started reading
the newspaper, I was just reading the newspaper. I wasn't bothering
anybody. I wasn't doing anything wrong, but I noted that Officer
Gonzales with a bunch of his friends were hanging out a short
distance from me and pointing at me and looking at me, and then
he came over -
Q. He being?
A. Officer Lombardi left his group of friends with one
of his friends sort of- being Officer Gonzales - sort of trailing
along behind a little bit. Officer Lombardi came over to me out
of all the people sitting in the park. I was just sitting there,
reading a newspaper, doing nothing wrong whatsoever and kicked
my literature and told me to get out this trash or whatever it
was they he called it out of the park and to leave the park myself.
So because I wasn't doing anything at all that should
justify this action on his part, I figured he don't like what
I'm saying, the signs and what I'm saying to the news crew, because
I just can't come up with any other reason. Maybe he's got a
reason for why he did it. I'd be interested to find out.
Thomas Depo. at 85-86. A copy of relevant excerpts from the
transcript of Mr. Thomas's deposition is attached hereto as Exhibit
B to Plaintiffs Statement of Genuine Issues. Mr. Thomas frankly
acknowledged in his deposition that he could not read defendant
Lombardi's mind. Thomas Depo. at 88. Neither can this Court. Mr.
Thomas considered the facts and concluded, "Reading the newspaper
is not disorderly conduct." Thomas Depo. at 87. To the extent
that defendant Lombardi tells a different story, the choice of
whom to believe must be left to the jury. 1/
Defendant Lombardi claimed in support of his prior Motion
to Dismiss that "[he] can demonstrate that he acted in good
faith, that his actions were reasonable and that he had probable
cause to arrest the plaintiff for disorderly conduct." Defs
Mem. at 11. Given an opportunity for discovery, defendant Lombardi's
claim of good faith and probable cause remains founded upon his
own version of the underlying facts, which clearly remain in dispute.
If defendant Lombardi "can demonstrate" his good faith,
then he should do so at trial, after discovery. Mr. Thomas is
entitled to offer evidence in support of his sworn complaint,
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), and should
be permitted to do so. Defendant Lombardi's motion for summary
judgment on the issue of qualified immunity must be denied.
2. Defendant Ofc. Lombardi violated clearly established
law under the First Amendment to the U.S. Constitution and is,
therefore, not entitled to qualified immunity.
The Court has already concluded that "[b]ased solely
on the statements in the Complaint, Defendant Lombardi does not
have qualified immunity," Memo. Op. at 14 (citations omitted),
but nonetheless permitted limited discovery to allow the Court
to make a further decision based upon
1/ "Where an issue as to a material fact cannot
be resolved without observation of the demeanor of witnesses in
order to evaluate their credibility, summary judgment is not appropriate.
Where the evidentiary matter in support of the motion does not
establish the absence of a genuine issue, summary judgment must
be denied even if no opposing evidentiary matter is presented."
Advisory Comm. Notes, 1963 Amendment, Fed. R. Civ. P. 56.
a more fully developed record. Based on that discovery the
deposition of Mr. Thomas and his own affidavit, defendant Lombardi
renews his claim of qualified immunity. Whether defendant Lombardi
is entitled to qualified immunity still depends generally upon
whether his actions violated clearly established law or were objectively
reasonable. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
This Court enumerated in its prior decision the basic principles
of qualified immunity doctrine, which are well-established and
not in dispute. Memo. Op. at 12-17.
Defendant Lombardi now declares that his "intent in
taking the actions against the Plaintiff was to avoid a major
disturbance in front of the White House" and he "did
not take any actions in order to retaliate against [Mr. Thomas]
for exercising his First Amendment rights." He "specifically
den[ies] that [he] knowingly or intentionally abridged or violated
any of the Plaintifs First Amendment or other rights as guaranteed
by the U.S. Constitution." Lombardi DecI. At 22-23. The question
remains, however, quoting the Court's prior opinion, could defendant
Lombardi "reasonably have believed that the motive behind
his conduct towards Plaintiff did not violate clearly established
law"? Memo. Op. at 13 (emphasis added). Defendant Lombardi's
new motion offers that he believes his conduct did not violate
plaintiffs rights; however the underlying issue of his reasonableness
remains unresolved, given the existence of material issues for
As Mr. Thomas argued in opposition to defendant Lombardi's
prior motion to dismiss, the conduct of Ofc. Lombardi was not
reasonable, because on the facts known to Ofc. Lombardi, as alleged
by Mr. Thomas in his sworn complaint, Mr. Thomas's conduct was
protected by the First Amendment under clearly established law.
Mr. Thomas was conducting a First Amendment-protected interview
with a news crew in Lafeyette Park and, thereafter, attending
his vigil site. Verified Complaint at 6-10. Ofc. Lombardi was
unreasonable, and violated Mr. Thomas's rights when he (1) ordered
Mr. Thomas to leave the Park; (2) shoved Mr. Thomas; and (3) grabbed,
handcuffed, and arrested Mr. Thomas. Therefore, as the Supreme
Court reiterated in Crawford-El, "the immunity defense
... should fail, since a reasonably competent public official
should know the law governing his conduct," 118 S.Ct. at
1593, citing Harlow, 457 U.S. at 818-
819. Plaintiff does not reargue further here the issue of qualified
immunity, as the Court has
already discussed its well-established contours and concluded.
"Retaliation for protected speech is a clearly established
constitutional violation. Surely a reasonable law enforcement
office would know that he may not retaliate against a private
citizen by arresting him for exercising that most basic of American
freedoms, the freedom of speech." Memo. Op. at 15 (citations
omitted). As defendant Lombardi has offered nothing to alter the
Court's conclusion, he is no more entitled to qualified immunity
now than he was before. Harlow, 457 U.S. 800 (1984); Butz
v. Economou, 438 U.S. 498 (1978); Siegert v. Gilley,
500 U.S. 226 (1991); Woody. Strickland, 420 U.S. 308 (1975).
Because (1) there are material facts in dispute which should
be determined by a jury at trial; and (2) defendant Lombardi's
conduct, as alleged by plaintiff in his verified complaint, violated
clearly established law under the First Amendment to the U.S.
Constitution, defendant Lombardi's motion for summary judgment
should be denied.
(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.
Washington, D.C. 20009
Counsel for Plaintiff