Memorandum in Support of Motion to Recuse

Memorandum in Support of Motion

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR RECUSAL

The Court was "presented with an application (filed in forma pauperis) for a temporary restraining order in the above captioned case." Court's Order, December 22, 1994. This application involves constitutional issues, as well as matters of life and death; alleged suppression of expression by all defendants, and a fatal shooting involving some defendants.

These issues - use of deadly, organized force and the suppression of free expression in a "quintessential public forum" (White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, 177) -- are of broad concern to the citizens of every democratic nation on Earth. These are matters essential to the well-being of any rational society, as such they require a fair public hearing, and the provisions of Rule 65 require that the hearing be prompt.

Particularly in light of the procedural reason it has claimed, for this Court to set January 6, 1994 to hear a TRO application filed on December 22nd, seems to reveal an insensitivity to the purpose of a TRO,[1] and trivalize the lofty responsibilities which justify the very existence of any honorable Court. Upon the premise that Justice delayed is Justice denied, and for the reasons set forth below, plaintiffs hereby request that this Court recuse itself from further participation in this matter.

1. SERVICE OF PROCESS

If the "Clerk of the Court advised the Court that the Defendants have not as yet been served" (Order, December 22, 1994, 2nd sentence), then the Clerk

[1 "An emergency remedy of brief duration which may issue only in exceptional circumstances and only until the trial court can hear arguments or evidence, as the circumstances require, on the subject matter of the controversy and otherwise determine that relief is appropriate. Paddington Corp. v. Foremost Sales Promotions, Inc. 13 Ill.App.3d 170, 300 N.E., 2d 484, 487. Black's Law Dictionary, 5th Edition.]

1

of the Court was giving Plaintiffs much different advice than she was giving the Court. See, attached Declaration of William Thomas.

A. SERVICE WAS MADE

Because a temporary restraining order is intended to redress issues of immediate danger, Rule 65 provides that relief may be granted without even notice to the opposing parties. Nonetheless, in this case -- where the lead defendant is the United States and all other defendants are agents or agencies of the United States -- service was made upon the U.S. Attorney, pursuant to the instruction of the Clerk who accepted the papers.

Whether correctly or incorrectly the filing Clerk refused to accept plaintiffs' complaint until the U.S. Attorney had been served. The U.S. Attorney was served, and the Clerk received a certificate of service. See, Declaration of Kenneth Kahn, attached hereto.

B. THE COURT HAS EXCEEDED ITS AUTHORITY BY REQUIRING PLAINTIFFS
TO COMPLETE SERVICE OF PROCESS UPON DEFENDANTS

The provisions of Title 18 USC Sec. 1915(c) unequivocally state, "The officers of the court shall issue and serve all process, and perform all duties in (in forma pauperis) cases...."

Without regard to established law, bedrock legal precedent, and the precepts of justice, this court decreed, "if proper service of process is completed, the Plaintiffs may bring this cause on for a hearing ... on Friday January 6, 1995." Order, 3rd sentence.

The purpose of providing for leave to proceed in forma pauperis is to assure that litigants will not be deprived of access to the judicial system because of their financial circumstances. Harlem River Consumers Co-op v. Associated Grocers of Harlem, D.C.N.Y 1976, 71 F.R.D. 93.

Legal precedent notes that the, "words 'fees and costs' within the meaning of (28 USC 1915) refers to those expenses whose payment can be held to

2

be requisite to any reciprocal action, including filing fees, marshal's fees for service of process...." Marks v. Caladine, D.C.W.Va 80 F.R.D. 24 (1978).

Precedent also provides for expediency in service of Justice: "It is left to the discretion of district court to determine whether petition ... for leave to proceed in forma pauperis is frivolous or lacking in merit..." Carter v. thomas, C.A.Tex. 1976, 527 F.2d 1332.

Because this Court did not find the complaint to be frivolous it appears that, much to Plaintiffs' prejudice, the Court holds in contempt either the idea of access for indigents and/or the concept of a swift and fair hearing.

2. PLAINTIFFS HAVE BEEN PREJUDICED BY
THE COURT'S UNREASONABLE DELAY

Owing to the importance of the issues involved in this case, the press was at the courthouse when plaintiffs arrived to file the complaint.

Notwithstanding the importance of a prompt and fair judicial hearing, due to the Court's leisurely approach to the hearing essential elements of the case have already been tried in the press, much to plaintiffs' prejudice.

Plaintiffs have been prejudiced, and important issues muddled, by widely broadcast statements -- based apparently on Park Police misinformation -- of news media personalities reporting that "sleeping AND camping are illegal."[2] Defendant Robbins himself has been forced, under oath, to admit that "sleeping" is not illegal. Robbins Testimony, Exhibit 1, for the record.

In televised news reports U.S. Park Police Major Hines repeatedly states

[2 "(T)he government's camping regulation also allows for 'sleeping activities' that are not deemed to constitute use of the area for living accommodation. () According to the Park Service's interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible 'camping' when it is done within any temporary structure erected as part of the demonstration." Community for Creative Non-Violence v. Watt, 503 F.2d 587, 589.]

3

"there have been no complaints against these officers," a claim that flies in the face of Thomas' letter to Richard Robbins, November 10, 1994.

Moreover Major Hines repeatedly states on T.V. that no complaints have ever been made about any officers, another factually insupportable statement prejudicial to Plaintiffs' interests. In fact, plaintiffs submit, the records of this very Court amply and irrefutably illustrate:

(a) several complaints have been made (e.g., Thomas v. USA, et. al.,
USDC 84-3552, Order, June 3, 1985, Exhibit 2, for the record), and

(b) after listening to "the testimony taken upon deposition in the
presence of the Magistrate of ten (government) witnesses in the case"
(Memorandum of Magistrate Arthur Burnett, January 13, 1987, Exhibit e,
for the record, pg. 6), Magistrate Burnett issued the ONLY JUDICIAL
OPINION ON RECORD REGARDING POLICE ABUSE, when he decided
that there was "an incredible number of incidents stemming from these
arrests on which reasonable minds might well differ as to the arresting
officers' subjective intent and whether their actions involved police misconduct"
(pg. 8) "which mandate proceeding to trial on plaintiff's causes of action
for both injunctive and declaratory relief" (id., pg. 14), but

(c) the judicial system avoided dealing with those facts on the basis
of procedural technicalities, a travesty to which only Justice White
dissented (113 S.Ct. 2397; 124 L.Ed.2d 298; __ U.S. __ (1993).

CONCLUSION

Thus, plaintiffs believe, the Court's refusal to listen in a timely manner to the important issues raised in the application TRO has resulted in actual prejudice to Plaintiffs through Defendants widespread public dissemination of misinformation if not outright falsehood, and bespeaks this Court's lack of ability, fitness or legal qualification to discharge its duty as required in this case, and fully justifies this honorable Court's recusal of itself from further involvement in this case.

Respectfully submitted this 27th day of December, 1994.



___________________________________
William Thomas, Plaintiff pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757

4