The plaintiffs' allegations involving Officer O'Neill's actions toward them are as follows: First, Officer O'Neill arrested Mr. Thomas for disorderly conduct without probable cause, and Mr. Thomas was never prosecuted. (Amended Complaint, 99 3, 4.) Second, Officer O'Neill on various occasions informed Mr. Thomas that his two signs were structures and violated the applicable regulations; Officer O'Neill further informed Mr.
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Thomas that if Mr. Thomas did not bring his signs into compliance, Officer O'Neill would take enforcement action. (Id. at ¶¶ 6, 7.) Third, Officer O'Neill informed Ms. Picciotto that the flags attached to her signs violated the applicable regulations and that if Ms. Picciotto did not bring her sign into compliance by removing the flags, Officer O'Neill would take enforcement action. (Id. at ¶¶ 11 - 18.) Fourth, Officer
O'Neill informed Ms. Picciotto that the cooler at her demonstration site violated the applicable regulations and that if Ms, Picciotto did not bring her site into compliance by removing the cooler, Officer O'Neill would take enforcement action. (Id. at ¶ 19.) Finally, Officer O'Neill has "banged his stick" on Ms. Picciotto's signs and "told [her], 'No camping, when he had no reason to say that," (12/21/94 declaration of
Concepcion Picciotto, ¶ 7), and has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, ¶ 5.)
As demonstrated in the defendants' opening memorandum, none of these allegations meets the heightened pleading standard. Each of these allegations is briefly addressed below.
Arrest. Based upon Mr. Thomas's own declaration describing his arrest, it appears that Officer O'Neill could reasonably have believed that he had probable cause to arrest Mr. Thomas for disorderly conduct. Assuming arguendo the truth of Mr. Thomas' allegations, Mr. Thomas called Officer O'Neill "dishonest or stupid," told Officer O'Neill he "had better things to do than
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listen to him," and started to walk away from Officer O'Neill (12/21/94 declaration of William Thomas, at ¶ 6.) When Officer O'Neill questioned Mr. Thomas about the registration of a bicycle, Mr. Thomas refused to answer the question, instead twice telling Officer O'Neill "to climb a flagpole." Id. [4]
Even if there was some doubt as to whether Officer O'Neill could reasonably have believed that he had probable cause to arrest Mr. Thomas, there is nothing in the plaintiffs' factual allegations that detail "specific, discernible facts or offers of proof that constitute direct as opposed to merely circumstantial evidence of the intent." Siegert, 895 F,2d at 802; Whitacre, 890 F.2d at 1171. Thus, the plaintiffs' allegations relating to Mr. Thomas's false arrest claim fails to satisfy the heightened pleading standard.
Signs/Flags. As described in our opening memorandum, the enforcement actions taken and statements made by Officers O'Neill and Keness regarding the plaintiffs' signs and flags (assuming arguendo these allegations are true) do not come close to stating a constitutional violation. The regulations are admittedly constitutional. Under the regulations, the plaintiffs cannot, under the guise of "supports,n create a structure and evade the applicable regulations by calling it a sign. Mr. Myers' letter
[4 Officer O'Neill's Supplemental Criminal Incident Record (attached as Exhibit 2), describes the incident in more detail. Based upon the facts recorded in that report, it is plain that Officer O'Neill had probable cause to arrest Mr. Thomas for disorderly conduct. See, e.q., Gueory v. District of Columbia, 408 A.2d 967 (D.C. App. 1979).]
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describes to Mr. Thomas precisely how he can bring his "signs" back into compliance with the regulations.
Likewise, the flag allegations do not demonstrate a constitutional violation. Plaintiffs offer two justifications in arguing that the flags attached to the signs do not violate the regulations. Neither of these contentions has merit. First, Mr. Thomas asserts that Judge Green found that the flags "had been seized without probable cause". Complaint, I 10. For this assertion, he relies upon Judge Green's Order of October 12, 1990, in the Huddle case. [5] Even a cursory reading of that Order completely undercuts plaintiffs' assertion. Consistent with the defendants' position in this case, the flags were seized in Huddle because having the flags affixed to signs made the signs larger than allowed under the regulation. See Huddle Order at 1. The flags were seized for evidence for a criminal prosecution; when there was a decision not to prosecute, the government offered to return the signs. Id. Judge Green's Order noted this course of events and then ordered that the flags be returned to the plaintiffs. Id.
Plaintiffs' other justification is that the flags were allowed pursuant to Ms. Picciotto's demonstration permit. This assertion simply ignores the terms of the permit itself, which specifically states that "[a]ll laws, rules and regulations applicable to the area covered by this permit remain in effect." See Exhibit 3 to Plaintiffs' original complaint, at p. 2. Thus,
[5 A copy of that Order is included as Exhibit 3.
]
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even under the terms of the permit, plaintiffs were not allowed to exceed the sign size limitations by attaching the flags.[6] None of the plaintiffs' factual allegations relating to the flags and signs demonstrate a constitutional violation. Moreover, the plaintiffs' allegations fall far short of demonstrating an intentional violation. Thus, these claims should also be dismissed for failing to meet the heightened pleading standard.
Cooler. As the defendants have previously noted, the application of the storage regulations to a cooler simply does not implicate the First Amendment. In any event, this Court does not even need to decide whether coolers are or are not allowed under the regulations, It is enough that, on their face the regulations reasonably would allow the conclusion that a cooler violates 36 C.F.R. § 7.96(g)(5)(x). Because the regulations prohibit "crates", "boxes and other enclosures" and "similar types of property," plaintiffs have failed with these allegations to meet the heightened pleading standard -- i.e., to plead facts showing an intentional violation of a clearly established constitutional right.
Camping. Camping is not allowed in Lafayette Park, and sleeping is an indicia of camping. Thus, it is perfectly appropriate for any Park Police officer to awaken an individual who appears to be using Lafayette Park for living accommodation
[6 As the defendants have previously pointed out, the plaintiffs are free to display the flags as long as they are hand-held.]
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purposes (such as sleeping) and inform them that camping is not allowed. See 36 C.F.R. § 7.96(i).
In their various filings, the plaintiffs focus extensively on their allegations regarding the application of the camping regulation to Mr. Corniel. These allegations, however, are irrelevant to this case: Mr. Corniel is not a plaintiff and the plaintiffs obviously have no standing to raise a claim relating to Mr, Corniel. As to the application of the camping regulation to them, the plaintiffs' declarations again fall far short of demonstrating an intentional violation of a clearly established constitutional right. Basically, both Ms. Thomas and Ms. Concepcion state in their declarations that Officer O'Neill has "banged his stick" on Ms. Picciotto's signs and "told [her], 'No camping,' when he had no reason to say that," (12/21/94 declaration of Concepcion Picciotto, ¶ 7), and has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, ¶ 5.) These bare-boned allegations simply do not state facts sufficient to find an intentional violation of a clearly established constitutional right.
b. Officer O'Neill Is Entitled to Qualified Immunity.
As the Supreme Court made clear in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), government officials are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." See also Mitchell
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v. Forsyth, 472 U.S. 511, 526 (1985) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). Because the plaintiffs' allegations relating to Officer O'Neill do not demonstrate that his application of the regulations to them violate clearly established constitutional rights, Officer O'Neill is entitled to qualified immunity and the claims against him in his individual capacity must be dismissed.
3. The Plaintiffs' Allegations Against
Officer Andrew Keness Must Be Dismissed.
a. The Plaintiffs Have Failed to Meet
the Heightened Pleading Standard.
The plaintiffs' allegations involving Officer Keness's actions toward them are as follows: First, Officer Keness on various occasions informed Mr. Thomas that his two signs were structures and violated the applicable regulations; Officer Keness further informed Mr. Thomas that if Mr. Thomas did not bring his signs into compliance, Officer Keness would take enforcement action. (Amended Complaint at ¶¶ 6, 7.) Second,
Officer Keness informed Ms. Picciotto that the flags attached to her signs violated the applicable regulations and that if Ms. Picciotto did not bring her sign into compliance by removing the flags, Officer Keness would take enforcement action. (Id. at ¶¶ 11-18.) Third, Officer O'Neill informed Ms. Picciotto that the cooler at her demonstration site violated the applicable regulations and that if Ms. Picciotto did not bring her site into
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compliance by removing the cooler, Officer Keness would take enforcement action. (Id. at ¶ 19.) Finally, Officer Keness has "threatened [Ms. Thomas] or others tending [her] vigil signs, using the camping regulation as an excuse." (12/21/94 declaration of Ellen Thomas, ¶ 5.)
As demonstrated in the defendants' opening memorandum, and above in the discussion relating to Officer O'Neill, none of these allegations meets the heightened pleading standard. (Rather than repeating the discussion here, the Court is respectfully referred to the argument presented above relating to Officer O'Neill.) In sum, these allegations simply do not state facts sufficient to find that Officer Keness intentionally violated any clearly established constitutional right.
b. Officer Keness Is Entitled to Qualified Immunity.
For the same reasons that Officer O'Neill is entitled to qualified immunity, so is Officer Keness. Officer Keness is "shielded from liability for civil damages insofar as [his] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818; see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."). Because the plaintiffs' allegations relating to Officer Keness do not demonstrate that his application of the regulations to them
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violate clearly established constitutional rights, Officer Keness is entitled to qualified immunity and the claims against him in his individual capacity must be dismissed.
B. Plaintiffs' Claim for Damages Must Be
Dismissed for Lack of Jurisdiction.
In addition to injunctive relief, the plaintiffs seek "nominal monetary damages". Amended Complaint, p. 10. As detailed in the defendants' opening memorandum, if this Court dismisses the Bivens claims against the individual defendants, it lacks jurisdiction over any claims for money damages. The plaintiffs have failed to even address this argument. Accordingly, the plaintiffs' claim for money damages must be
dismissed for lack of subject matter jurisdiction.
C. The Plaintiffs' Motion to Strike the January 20, 1995,
Letter of Randy Myers Should Be Denied.
With their complaint, plaintiffs filed a copy of a letter sent to defendant Richard Robbins, and claimed that Mr. Robbins' failure to quickly respond to their letter subjected him to a Bivens claim. Subsequently, Mr. Randolph Myers of the Solicitor's Office investigated the claims made by Mr. Thomas in his letter, and responded to Mr. Thomas with the results of his findings. This letter -- which was prompted by and directly responds to the letter previously filed by the plaintiff -- was
filed with the defendants' opposition to the plaintiffs' motion to reconsider the denial of the TRO. Plaintiffs now seek to strike this letter. This motion should be denied.
First, the January 20th Myers' letter is directly responsive
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to the letter filed by the plaintiff and merely makes for a more complete record. Second, under Rule 803(8) (C), Fed.R.Evid., this letter is not excluded by the hearsay rule, regardless whether Mr. Myers was available as a declarant. Accordingly, the Court can properly consider this letter in ruling on the pending papers.
D. The Plaintiffs' Motions for Sanctions Should Be Denied.
The Court has previously denied the plaintiffs' first motion for sanctions, without prejudice to plaintiffs' right to renew the motion after the Court decides the defendants' pending motion to dismiss. See January 27, 1995, Order. The plaintiffs' repeated motions for sanctions are meritless. The defendants have properly raised both the heightened pleading standard and qualified immunity to defeat plaintiffs' claims against the individual defendants.[7] The plaintiffs have failed to demonstrate any violation of Rule 11, Fed.R.Civ.P., and their motions should be denied with prejudice.
CONCLUSION
For the reasons stated and upon the authorities cited, all of the claims against the individual defendants, and the claims for money damages, should be dismissed.
Respectfully submitted,
______________________________________
ERIC H. HOLDER, JR., D.C. BAR #303115
United States Attorney
[7 Once these issues are resolved, the defendants intend to file a motion for summary judgment as to all of plaintiffs'
claims.]
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_________________________________
SALLY M.. RIDER, D.C. BAR #436588
Assistant United States Attorney
OF COUNSEL:
RANDOLPH MYERS, Esq.
Office of the Solicitor
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