structures cannot be seen as violating a clearly established
right.[5]
As the Court correctly concluded in its dismissal of all
claims against him, plaintiffs have stated no facts which could
support a claim against Richard Robbins, Assistant Solicitor of the
Department of the Interior for supervisory negligence. While
plaintiffs do not so indicate in their memorandum, defendants
assume that plaintiffs' attachment to their memorandum of a copy of
a National Park Service 1982 Operations Division Memorandum is
intended to suggest a particular supervisory obligation or standard
of Mr. Robbins as Assistant Solicitor. To the extent that it is
intended to have such significance, the memorandum is clearly
wholly irrelevant to the issues before the Court in this action.
First, on the face of the thirteen-year-old memorandum it is clear
that it concerns then newly-issued regulations that were subject to
ongoing litigation or were different than the ones before the Court
in this matter, During the period of time of the attached
memorandum, the camping regulation at issue here, found at 36
C.F.R. S 7.96(i), was subject to intense litigation, and diverse
rulings, before it was ultimately upheld by the United States
[5 See defendants' memorandum in support of their motion for
partial reconsideration of the Court's April 12th Memorandum
Opinion and Order for further discussion on the reasonableness of
the officers' ' application of the sign-size regulations to
plaintiffs' display of flags attached to the stationary signs.]
5
Supreme Court as a valid time, place and manner restriction on
First Amendment expression. See Clark v. CCNV, 468 U.S. 288
(1984), re\iersina 703 F.2d 586 (D.C. Cir. 1983). Likewise, the
structures regulation for the White House sidewalk, which is at
issue here, was subject to intense litigation. White House Vigil
v. Clark, 746 F.2d 1518 (D.C. Cir. 1984). Thus, there is
absolutely no probative significance whatsoever to the attached
memorandum, and as the Court indicated in the April 12th
Memorandum, plaintiffs have alleged no facts which would support a
claim that Mr. Robbins should not have qualified immunity on
plaintiffs claims against him.
D. Plaintiffs have not stated facts sufficient to overcome
the qualified immunity of the officers in the conduct of
their duty to enforce the regulations applicable to
demonstrations in Lafayette Park.
Finally, plaintiffs argue in their motion for partial
reconsideration that the individual officers should be liable for
damages because the officers there was "no probable cause for any
threat" to plaintiffs, and that the officers' conduct was
"malicious." In their pleadings in support of their original
motion to dismiss and in support of their motion for summary
judgment, defendants have fully explicated the reasonableness of
the officers actions toward plaintiffs in the enforcement of the
regulations applicable to activities in and around Lafayette Park.
As the Court has properly assessed and analyzed according to the
standards applicable to claims seeking individual liability against
federal officers, plaintiffs have not stated facts which can
support their claim for damages against the officers, as they have
6
not shown a violation of clearly established rights or improper
motive on the part of the officers. It is axiomatic that in cases
such as this, the individual officers are entitled to the
protections of qualified immunity as prescribed under well-settled
law. See Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); Butz v.
Economou, 438 U.S. 478, 507-508 (1978); Hobson v. Wilson, 737 F,2d
1, 29 (D.C. Cir. 1984) , cert. denied, 470 U.S. 1084 (1985) ;
Martin
v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987), reh. denied, 833
F.2d 1049 (D.C. Cir. 1987). Thus, plaintiffs' motion for
reconsideration fails to set forth any bases in law or in fact that
would warrant the Court's reversal of its proper rejection of these
claims.
With respect to the one claim which t.he Court's April 12,
1995
Memorandum Opinion and Order sustained, plaintiffs' claim regarding
display of flags, in their memorandum in support of their motion
for reconsideration of that portion of the Opinion and Order and
for summary judgment, defendants' have set forth in detail why the
officers are, in fact, entitled to qualified immunity on this
claim. In their recent pleadings, defendants have presented to the
Court the language of the regulations which the Department of the
Interior, through its counsel, deems applicable to the activity at
issue, and the legislative history which supports that conclusion.
By contrast to plaintiffs' motion for partial reconsideration in
which plaintiffs merely restate and argue the allegations in their
complaint, defendants have in their motion for reconsideration and
subsequent pleadings demonstrated why they are entitled to
7
dismissal of the flag claim, along with all other claims properly
dismissed by the Court in its April 12, 1995 Order.
For these reasons, plaintiffs' motion for partial
reconsideration should be denied.
Respectfully Submitted,
________________________
ERIC HOLDER Jr. DC Bar #303115
United States Attorney
________________________
KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney
OF COUNSEL:
Randolph J. Myers, Esq.
Office of the Solicitor
United States Department of Interior
CERTIFICATE OF SERVICE
I HEREBY CERTIFY this 14th day of AUGUST of 1995, that
service of the foregoing DEFENDANTS' MEMORANDUM IN OPPOSITION TO
PLAINTIFFS MOTION FOR PARTIAL RECONSIDERATION was made by sending
copies thereof by first class mail, postage prepaid, to:
William Thomas
Apartment B
2817 llth Street, N.W.
Washington, D.C. 20001
KIMBERLY N TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Rm 10-106
Washington, D.C. 20001
202-514-7141