v.                    Civil Action No. 99-0330 (GK)



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.

Factual Summary

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 13-16.

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 trial.

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.

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.
Suite 225
Washington, D.C. 20009
(202) 328-2244
Counsel for Plaintiff