PLAINTIFFS' REPLY

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

PLAINTIFFS' REPLY TO DEFENDANTS' MEMORANDUM IN OPPOSITION TO
PLAINTIFFS' MOTION FOR PARTIAL RECONSIDERATION OF COURT'S
APRIL 12, 1995 OPINION AND ORDER

On August 4, 1995, the Court held a status conference in the above-captioned case to address plaintiff Thomas' request, filed in Civil Action No. 95-1018, to consolidate proceedings in that matter with the above-captioned case. At that time, the Court inquired of Government counsel as to the filing of an Opposition to the Plaintiffs' Motion for Partial Reconsideration of the Court's April 12, 1995 Order (filed April 19, 1995). Pursuant to an Order entered July 10, 1995, on August 14, 1995 defendants filed an Opposition to the Plaintiffs' Motion for Partial Reconsideration ("Defts' Opp.").

Honesty and service to reasoned dialogue impel the undersigned to note an impression that counsel's pleadings thwart the ends of justice, by confining the Record to a repetitious pattern, [1] wherein plaintiffs repeatedly allege "defendants did it," and defendants ignore the facts, repeating, "we didn't do it, because we were only enforcing regulations". [2] To make this criticism constructive, the following Discussion ("A"-"D") tracks defendants' Argument ("A"-"D") point by point ("A" responds to "A," etc.).

[1 E.g., Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment ("Pl.s' Reply") (August 2, 1995), pg. 1.]

[2 E.g., Defts' Motion to Dismiss (January 11, 1995), pg. 1; Defts' Opp. (August 14, 1995), pg. 6.]

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DISCUSSION

Defendants' Pleadings Seriously Misconstrue
The Separate Questions Of Fact and Law

Plaintiffs lodged a factually based complaint implicating defendants' motives. [3]

"This matter originated on December 22, 1994, when three long-term demonstrators in Lafayette Park filed an Application for a Temporary Restraining Order. Plaintiffs alleged that agents of the Park Police had engaged in a pattern and practice of arbitrarily threatening, intimidating, and harassing individuals, and particularly individuals engaged in First Amendment exercise, in the Park, under color of various valid Park regulations, and that the shooting death of Marcelino Corniel was a proximate result of this alleged pattern and practice of regulatory enforcement." Plaintiffs' Proposed Order, (January 11, 1995), pg. 1, cf, Complaint, page 1, and COUNTS 1-9.

Integral to this Complaint is the "pattern and practice" allegation. [4]

It is plain, defendants have not disputed plaintiff's factual claims. [5] Rather, they insist, the facts are moot under the legal doctrine of official immunity. But, it is

[3 With respect to defendants' motions for summary judgment and dismissal, and prior to any fact finding process, all "yes, they did" / "no, they didn't" arguments must be resolved in plaintiffs' favor. See, Conley v. Gibson, 355 U.S. 41, 45 (1957); Reuber v. United States, 750 F.2d 1039 (D. C. Cir. 1984), see also 5 Wright C Miller, Federal Practice and Procedure, 1357 (1969).]

[4 "(T)he District Court must look to the way the complaint is drawn to ... claim a right to recover under the Constitution and the laws of the United States." Bell v. Hood, 327 U.S. 681 (1945). ]

[5 On the contrary, plaintiffs suggest, defendants' have actually sought to evade the facts. Plaintiffs' Motion for Sanctions (January 24, 1995); Plaintiffs' Motion for Sanctions (February 9, 1995); Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Sanctions (February 27, 1995); Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion to Strike Randolph Myers' Letter. (February 6, 1995). Plaintiffs' Motion for Summary Judgment, and Suggestion for Rule 11 Sanctions (July 7, 1995).]

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well-established that the doctrine of official immunity was never intended to shield official misconduct motivated by some improper purpose. [6] See Harlow v. Fitzgerald, 457 U.S. 800 (1982). As the Court of Appeals has indicated, [7] the infirmity of defendants' argument lies in requiring that the fact finding function of society divorce itself from factual reality. [8] As discussed below, plaintiffs' factual allegations are presently offset by nothing more than counsel's personal opinions.

A. The Court Was Correct In Concluding That Nonspeech Conduct
Meets the Heightened Pleading Standard for Imposing Liability on
the Individually Named Defendants.

Defendants contend, "plaintiffs have not stated facts which would support their assertions that clearly established rights of which the defendants should have been aware were violated..." Defts' Opp. pg. 2. Plaintiffs believe this honorable Court has an appreciation for the importance of individual thought and harmless expression,

[6 Plaintiffs have shown that the alleged pattern and practice revolves around their continuous expressive presence in the park. Each of the allegations involves some aspect (specifically, "signs," "flags," or "presence") of plaintiffs' expressive activity. It would be an error to, as defendants urge, eliminate the whole by individually sanitizing each of its parts under color of official immunity.

"(T)he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole." 16 American Jurisprudence, Second Edition, Section II.]
[7 "In an effort to overcome the obvious, defendants ... argue that each individual act that they were shown to have committed was lawful, and that they consequently are immune. This argument seriously misconstrues the nature of the qualified immunity defense, and in particular the separate questions of fact and law." Hobson v. Wilson, 737 F.2d 1, 26 ]

[8 NOTE, Defendants' record is devoid of any suggestion that plaintiffs pose any threat to person, property, or propriety. ]

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untrammelled by police state tactics, which counsel apparently fails to understand: [9]

"First, the Plaintiffs have established that a clearly established right is implicated by the Defendants' actions. It is beyond doubt in this Nation's jurisprudence that nonspeech conduct sometimes qualifies as expressive conduct protected by the First Amendment. ..."

"Second, the plaintiffs have claimed with sufficient specificity that the Officers acted unreasonably in relation to that clearly established right by threatening the Plaintiffs with arrest...." Order, pgs. 19.

By insisting that a flag, plus a sign, equals a regulatory violation, just because the government has had Mr. Myers' write a note [10] attesting to his belief that such is the case, counsel exhibits a profound misunderstanding about government's legitimate power to suppress the exercise of expressive activity.[11]

B. Whether Plaintiffs' "Continuous Presences" and
"Expressive Activities" Implicate
A "Clearly Established Right," or "A Crime"
Are Questions of Fact.

Legally, there is little question that a "continuous presence," or "vigil" is

[9 "The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945);]

[10 See, Motion to Strike Randolph Myers' Letter. (February 6, 1995); Pls' Reply (August 2, 1995), pgs. 1-8, compare, Defts' Opp. page 7.]

[11 The Supreme Court has established a well-known test to gauge the legitimacy of government incursions on individual freedom of thought and expression:

"Symbolic expression of this kind may be forbidden or regulated ... IF the regulation is narrowly tailored to further a substantial governmental interest, and IF the interest is unrelated to the suppression of free speech." United States v. O'Brien, 391 U.S. 367, 376 (1968).
Defendants apparently contend that Clark v. Community for Non-Violence, 468 U.S. 288 eliminated any limitations on the government's suppression of free speech under color of regulation. However that contention has been summarily rejected. City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1553, 1554, summarily affirmed, January 20, 1987, see also, Pls' Facts (July 7,1995), ¶¶ 1-4, 29-32.]

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specifically permitted by law. [12] It is uncontested that plaintiffs' vigils have caused no harm. Moreover, plaintiffs have submitted sworn declarations establishing that their vigils are religiously motivated, intended to express opinions on issues of broad public concern, and likely to be understood by observers. [13] The Government has not directly challenged these facts, [14] and has flatly failed to identify any legitimate interest to justify police harassment under color of regulations.

Absent any challenge to plaintiffs declared facts, defendants merely argue,

"Plaintiffs assert in their motion that their activity of having a 'continuous presence' in Lafayette Park is constitutionally protected expressive activity, and the enforcement of the National Park Service restricting camping activities

[12 Concepcions' permit specifically allows her to "maintain a continuous 24 hour presence." Complaint, Exhibit 3, 4th page. which could be done without a permit because, applicable regulations distinctly provide:
"The term 'demonstrations' includes ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent, or propensity to draw a crowd or onlookers...." 36 CFR 7.96 (g)(1)(i).
The Park Service has explicitly stated it has no desire to preclude "continuous vigils" from Lafayette Park. Federal Register, Vol. 51 No. 43, pg. 7559, 2nd col., March 5, 1985, for Mr. Robbins' name see, id. 7556, 2nd col.
"(F)irst Amendment rights ... certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence...." Brown v. Louisiana, 383 U.S. 131; also, Watson v. Memphis, 373 U.S. 526 (1962); Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91 (1965); Wright v. Georgia, 373 U.S. 284, 291-293; Johnson v. Virginia, 373 U.S. 61]

[13 See, e.g., Declarations of Ellen Thomas, Concepcion Picciotto, and William Thomas, filed December 22, 1994, ¶¶ 1-3; Second Declaration of William Thomas, generally, filed February 9, 1995; Declaration of Ellen Thomas, filed March 20, 1995 ¶ 1.]
[14 Plaintiffs' factual allegations must be taken as true and viewed in a light most favorable to them. Conley v. Gibson, 355 U.S. 41, 45 (1957); Reuber v. United States, 750 F.2d 1039 (D. C. Cir. 1984).]

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cannot be applied to them." Defts' Opp. pg. 3. [15]

Plaintiffs are not defendants in this case. [16] Except for counsel's arguments, nothing in the record of this case suggests that plaintiffs were "camping." Without adding any substance to the bare bones "plaintiffs are campers" insinuation, counsel continues to argue this hotly contested innuendo as if it were established fact.. [17]
"there has been no showing that there was a clear violation of law with respect

[15 Here defendants interject an embellishment, nowhere have plaintiffs suggested that camping restrictions cannot be applied to them. The plaintiffs only seek relief from the law of official whim, with the modest and reasonable suggestion, "that defendants (be required to) institute a standard of regulatory enforcement that will insure defendants agents are precluded from arbitrarily, capriciously, or maliciously enforcing the valid C.F..R. regulations pertaining to demonstration activities in Lafayette Park." Plaintiffs' Proposed Order (July 7, 1995), pgs. 15-16.]

[16 See, e.g., Motion for Sanctions (January 24, 1995) pgs. 2 and 15; Plaintiffs' Motion for Partial Reconsideration (April 19, 1995), pg. 6; Plaintiffs' Motion for Summary Judgment, and Suggestion for Sanctions (June 7, 1995), pg. 8.]

[17 There is no evidence that plaintiffs were camping. So, purely for the sake of argument, counsel seeks to create some question:
"In the unusual circumstances (of a round-the-clock vigil), sleeping must be taken to be sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance." United States v. Abney, 534 F.2d 983, 985
It can easily be seen that counsel's "'demonstration' is 'camping''" argument relies on an abstract extension of, with all due respect, murky legal theory.

When courts first began pondering the issue foresighted elements of this Circuit Court recognized the "camping" regulations as potentially "bad law." Community for Creative Non-Violence v. Watt, 730 F.2d 600, 605 J. Ginsburg, J. Edwards' concurring, see also, id., 601, J. Mikva, separate concurring opinion.

Members of the Supreme Court also expressed strong reservations to the rational and intent of the regulation itself. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 301-316 (1984). Although the majority held the "camping" regulation to be constitutionally valid, the Court clearly did not find that "demonstrating is camping."
"The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil." Id., 293.]

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to plaintiffs' attempt to maintain a 'continuous presence' at Lafayette Park (which the officers reasonably construed as 'camping' in violation of regulations)," Defts' Opp. pg. 3 (parenthesis in original).

Here is the nexus of the controversy: plaintiffs claim it's a protected "vigil" (supra, ftn. 12) and defendants call it criminal "camping." A careful scrutiny of the Record fails to reveal any specific allegations that plaintiffs violated the provisions of the "camping" regulation. On the other hand there are indications that defendant officers unreasonably used the regulation to color acts of harassment and intimidation. E.g., Second Declaration of Concepcion Picciotto (January 24, 1995), ¶ 6. [18]

On the record this factual dispute is best reflected in photographs submitted by both parties [19] All these photographs depict the demonstration signs jointly maintained by plaintiffs Picciotto and Thomas. Plaintiffs assert these photographs graphically illustrate the socially beneficial exercise of free thought and expression, Defendants contend they depict a crime. [20]

Defendants have charged that, "Plaintiffs in this action are three perennial

[18 "(I)t is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations." Hobson v. Wilson, 737 F.2d 1, 27, emphasis in original, see also, Dombrowski v. Pfister, 380 U.S. 479, 482.]

[19 Plaintiffs' Third Motion for Sanctions, (February 9, 1995) Second Declaration of William Thomas, Exhibit 2-C; Defendants' Motion to Dismiss the Amended Complaint, or in the Alternative of Summary Judgment, May 15, 1995, Exhibits 2 A-C.]

[20 Plaintiffs' Statement of Issues to Which There Exists a Material Dispute (filed June 2, 1995), ¶¶ 1-3]

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demonstrators in Lafayette Park." Motion to Dismiss (January 11,1995), pg. 1. [21] As a legal matter the Court should recognize that there is no law or regulation which criminalizes perennial demonstration. Supra, ftns. 12 & 17. To maintain balance the Court must also test the other perspective. Essentially, plaintiffs submit, their "vigil," which has continued since 1981, has some attributes of a landmark tribute to the First Amendment, and, as such, represents the status quo. [22]

"It is the right of every American to take a stand and make a point in Lafayette Square." Caption under a picture of Plaintiff Concepcion Picciotto, Berlitz Travel Guide, 1991, Second Declaration of William Thomas, Exhibit 2-C; see generally, Exhibits 1-3 (February 13, 1995).[23]

Hence, the question here is whether a fourteen-year-old vigil implicates First Amendment protection, or whether, as defendants urge, jurisprudence in this nation,

[21 Plaintiffs have previously analyzed this characterization in some detail. See, Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, IDENTITY CRISIS, and stare decisis, pages 4 - 10.]

[22 While defendants here now argue that plaintiffs' vigil is a crime, at the same time defendants in Civil Action No. 95-1018 offer a contradictory argument to advance their interests that case:
"(Plaintiff) can and has moved his platform back to Lafayette Park and resumed the vigil he has maintained since 1983. Plaintiff will still have ample opportunity to exercise his First Amendment Rights absent preliminary injunction." District of Columbia Defendants' Motion to Dismiss (June 21, 1995), pgs. 8, 9.

These contradictory representations of the same activity strengthen the argument for consolidation.]

[23 "I don't want to risk irritating the Court into a potentially tragic opinion. A lot of people's rights are at stake here. It would be unfortunate to give the police the signal that it's okay to kick and hit people if they're suspected of violating a minor regulation, and, should the person rebel against such contemptuous treatment, then it's okay for the police to kill him. If the police aren't held to civilized standards of behavior, what's wrong with death squads?." Plaintiff Ellen Thomas' Opposition to Plaintiff William Thomas' Motion to Dismiss for Frivolity (February 1, 1995), pg. 2.]

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under color of "public nuisance," has come to condone arrest, assault, intimidation, or whatever other means Government agents find "necessary" to harass people who are raising issues of profound importance in a "quintessential public forum."