Plaintiffs' Motion to Reschedule Preliminary Injunction..

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' MOTION TO RESCHEDULE THE PRELIMINARY INJUNCTION
HEARING AND FOR PARTIAL RECONSIDERATION OF
THE COURT'S FEBRUARY 8, 1995 ORDER

INTRODUCTION

1. PRELIMINARY INJUNCTION

Pursuant to Federal Rules of Civil Procedure 65(a)(2) or (b)(2), plaintiffs hereby move the Court to schedule a Preliminary Injunction Hearing "at the earliest possible time."

On January 9, 1995 the Court consolidated the preliminary injunction hearing with trial on the merits, and "ORDERED that the Court shall hold a hearing on the same on January 12, 1995."

On January 11, 1995 another Order issued, explaining,

"The Court recalls that at the January 6, 1995 hearing on the Plaintiffs'
application for a Temporary Restraining Order, Plaintiff William Thomas represented
that the Plaintiffs might need additional time to perform discovery. Accordingly,
in view of the foregoing, and in order to afford both parties the time to respond in
writing to the motions filed today, it is, by the Court this 11th day of January, 1995,

"ORDERED that the hearing scheduled for January 12, 1995 at 2:00 p.m. on the Plaintiffs'
Motion for a Preliminary Injunction and on the merits of the above-captioned
case shall be, and hereby is CANCELLED."

With the Court's Order granting Defendants' Motion to Stay Discovery (see also Order, February pg. 6. ftn. 2), there is no further need for delay.

1

"The Court wishes to ... advise the Plaintiffs to take care before suggesting that the Court is operating under some sort of bias for or against any party." And the advice is well taken.

However, plaintiffs feel that to balance the Governments' concerns [1]"to protect the security of the President and other occupants of the White House, and to preserve and protect the Park itself" (Defendants Opposition [January 23, 1995] pg. 5), "heightened pleading standard" and "official immunity," against plaintiffs' right to "meaningful access to the courts," [2] the underlying facts in this case may be lost (as were those in U.S. Magistrate's Memorandum of January 13, 1987 [Motion to Recuse, Exhibit 3]) after defendants simply "deny that the regulations, as writen or as enforced against plaintiffs, are unconstitutional...." Thomas, et. al. v. United States, 696 F.Supp. 702, 706, 707.

From plaintiffs' perspective, Government actions seem to have a prediliction to escape judicial review. This may, of course, be a figment of plaintiffs' collective imagination, but, in the interests of balanced justice, it should be noted that whether reasonable minds might make similar inferences from the Record has not yet been fully tested. For example, pausing, at defendants' suggestion, to examine "Thomas v. Lujan, 791 F.Supp. 321 (D.D.C. 1991) (upholding Lafayette Park storage regulation)."

[1 UNSPECIFIED AS TO THESE PARTICULAR PLAINTIFFS, OR THE ISSUES AT BAR.]

[2 E.g., Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985), at 794, citing Brandon v. D.C. Parole Board, 734 F.2d 56 at 62; Redwood v. Council of D.C, 679 F.2d 931, 934 (1982).]

2

(Defendants' Opposition [January 23, 1995], pg. 3), we can unmistakably perceive from the transcripts of the first TRO hearing that, in the beginning, [3] plaintiffs alleged

"harassment and attempt to deprive us of First Amendment and Fourth Amendment rights.
That's the underlying claim here." Thomas v. Lujan, transcript, March 3, 1992
(Exhibit 1 hereto), pg. 7, lines 5-7.

As usual the Government claimed it didn't know exactly what it was doing:

"(A)ll I know is what (Thomas is) saying now is that they were arrested and
what I saw in the Washington Post,[4] I think, on Sunday morning that there
were some arrests at Lafayette Park. I'm just uninformed in terms of telling the
Court the status of those cases." Id. pg. 9, lines 7-12.[5]

Plaintiffs were not entirely unreasonable.

[3 On February 29, 1992, plaintiffs Concepcion and Ellen were arrested at 4:00 a.m. while tending their signs, which were confiscated, coincidentally(?) just three days after plaintiff William Thomas had testified before the House Subcommittee on Interior Department Appropriations, challenging the expenditure of taxpayers' moneys in promulgating the then-pending "storage" regulation, and naming defendant Robbins as the author and/or interpreter of this and three previous regulations directly affecting First Amendment exercise in Lafayette Park.]

[4 Plaintiffs have already expressed concern that, much to their prejudice, lengthy delays in the instant case have already resulted in the instant matter "being tried in the press" (Motion to Recuse, pg. 4). Another claim not entirely unprecedented.

In Thomas v. Newsworld Communications, 681 F. Supp. 55, these same plaintiffs, and others, alleged "the Times conspired with the federal defendants, which conspiracy was intended to and did result in the promulgation of federal regulations that interfere with plaintiffs' exercise of their First Amendment rights of expression and association." Id. pg. 60.

Unfortunately, J. Oberdorfer circuitously misconstrued plaintiff's allegation that the Washington Times "organized and implemented the .. raid in an effort to generate a news story" as the First Amendment right of "the newspaper's editors (to) criticize in published opinions." Id. 61.]

[5 As we can now see, Thomas was not arrested on that occasion, but plaintiffs Ellen and Concepcion were. Transcript, March 4, 1992 (Exhibit 2, hereto), pg. 3, lines 3, 4.]

3

"In Fact, the Government's position as it's been relayed to me through the
Park Police is that they are being held as evidence. My argument today is that
signs, literature and official D.C. petitions cannot reasonably constitute
evidence of camping." Id. pg. 6, lines 6-10.

"And every minute that I don't have those signs and that literature and those
petitions -- the petitions, if I might point out, are official D.C. Board of Elections
petitions, and there is a time limit on which signatures can be collected on
those petitions." Id. 14, lines 15-19.[6]

Then too, though perhaps a little less tactfully, the Government was more
interested in wasting time with ad hominem attacks than in to getting at the facts,

"This is Green v. Lujan ... This is where the Court hold that it was a lawful
abatement of nuisance for the Park Police to go and pull property out of Lafayette
Park." Id. pgs. 8-9.

To be sure, the arguments were very familiar,

"With all due respect to (the Government), we're not here to talk about camping.
Whether or not there is any guilt in a camping case will be decided should the
Government decide to go ... ahead with those charges. [7] "What I'm talking
about is simply signs, which are within the existing regulations --"
Id. pg. 13, lines 4-10.

Once again, defendants' words betray that they really knew what was going on,

"This is also a Bivens (violation of constitutional rights, under color of
regulation [42 USC 1985(3), 1986] case ... and I'd really prefer to make
representations ... and not have a full fledged evidentiary hearing" Id. pg. 19,

[6 Here, it should be noted, plaintiffs were referring to petitions for D.C. Initiative 37. Declaration of William Thomas, February 9, 1995, Exhibit 3-B.]

[7 In retrospect we see, as is so often the case (see, supra, Magistrate Burnett's Memo), the charges were dropped, resulting in a waste of taxpayer resources, plaintiffs' time, the disruption of expressive activities, and, yet again, a judicially unexamined degradation of principles fundamental to civilization. ]

4

lines 17-21 (parentheses added).[8]

As now, plaintiffs weren't asking for much,

"I'd simply like you to sign the ... temporary restraining order that I've prepared."
Id. pg. 13, lines 21-23.

Judge Sporkin was prudent.

"Well, I'm not going to sign any order until I know what the facts are."
Id. lines 24, 25.

Consistent with the emergency nature of a TRO, Judge Sporkin set further hearing for the following morning, [9] advising the Government,

"(H)ave somebody here that can answer some questions. We don't have to have a
full blown -- look, I'm here with -- it's 4:00 o'clock. He's got a TRO. I'm your
servant. I didn't create this. I wasn't out there at 4:00 o'clock in Lafayette
Park. I'm just trying to find out what happened here and get this man back his
belongings if he's been deprived his belongings." Id. pg. 19, line 22 - 20, line 3.

Apparently the honorable Court had done some sound reasoning overnight, came to work prepared to do its job. At the second hearing the Court tried patiently to reason with the Government, thus sparing plaintiffs what they find a very unpleasant, physically and emotionally draining task. Very first thing the Court did was to demand some facts:

[8 Combing the final decision in Lujan, we discover it is bereft of any mention of Bivens, or, for that matter, the underlying complaint in Lujan. Plaintiffs would appreciate correction if they are mistaken. See, 791 F.Supp. 321-323. Of course, we note that the publication at 791 F.Supp. 321-323 deals with Plaintiffs' Motion to Reconsider (May 5, 1992), in which, in turn, plaintiffs can still discern no mention of Bivens, supra, or resolution of the original underlying factual issues relating to the incidents on Feburary 29, 1992. Supra, ftn. 3.]

[9 After determining that J. Richey was not immediately available. Id. pg. 14, line 25.]

5

"Do you have a report?" Transcript, March 4, 1990, (Exhibit 2, hereto)
pg. 2, line 4.

The Government had a few facts:

"(A)rrests were made, six for camping, one for interfering. Two of the arrests
for camping are tow of the plaintiffs here. Ms. Ellen Thomas and Concepcion
Picciotto. Mr. William Thomas, who was here yesterday, was not arrested."
Id. pg. 3, lines 1-4.

The Government also wanted to talk about other things. The honorable Court tried to focus the Government's attention,

"Why are we going to run these people around?" Id. pg 5, lines 1, 2.

Still, the Government wanted to discuss other legalities, "Well, I mean, they
don't have a First Amendment right to a bike. The problem -- they have had
harassment case after harassment case in this Court, and they have lost every
single one. And I would like to hand up one other decision from Judge Joyce Green.
This is pending appeal." Id. pg. 5, lines 20-25.

The Court tried to be reasonable,

"If somebody took your car and told you couldn't have it until April 15th because
you parked your car illegally, what would you do?" Id. pg. 7, lines 4-6.

When the Government still wouldn't give it a straight answer, the Court was beginning to feel as if the plaintiffs

"have property that they are entitled to have. And you're giving me every procedural
roadblock to prevent them from getting their -- you know, that's what Judges are here
for." Id. lines 18-22.

Alas, the Government argued,

"Your Honor, they are not allowed to file a lawsuit to get evidence back of a
criminal offense." Id. pg. 7, line 23, 24.

As happens with good courts when pettifoggery grows too thick, the Court's patience began to wear thin:

"Can I tell you what you do. Go to the Court of Appeals and the Supreme Court.
I'm ordering you to give back their property by noon today." Id. pg 8, lines 2-4.

6

Yet, still the Government resisted the reasonable,

"Your Honor, it's evidence in a criminal case I have made my argument ....
I move for a stay of this order for 24 hours." Id. Lines 14-18.

The Court remained honorable by refusing to compromise the law, or back down from
its just and reasonable decision. "No, there will be no stay. Give me an order.
(Exhibit 4, hereto, see, Wanted Wisdom and Honesty, pg. 3, compare, Declaration
of William Thomas, February 13, 1995, Exhibit 1-A.) At noon today they are to
get back all of their property." Id. pg. 8, lines 19-22.

As a result of the Court's firm stand in upholding what it wisely recognized as "one of the most treasured rights that we have," the Government reluctantly, begrudgingly relented.

Nowhere do defendants claim plaintiffs have done any more than think, express thought, and, occasionally fall asleep. Public though they've been, there is no record to indicate plaintiffs have caused even one real problem.[10]

On the other hand plaintiffs allege that certain defendants were, and still are, behaving very much like thugs. See, Declaration of David Jackson and Second Declaration of Wade Varner, Exhibits 3 and 4 respectively, filed this date.

Thus, while at least plaintiff Wm. (aka, Doubting) Thomas,

[10 Sadly, plaintiffs can't say the same for defendants. At the January 6, 1995 TRO hearing plaintiff Thomas described the interaction between certain police officers and the vigilers as torture and psychological warfare. Moreover plaintiffs claim police harassment was a major obstacle in their efforts to put a voter initiative on the 1992 D.C. general election ballot. Second Declaration of William Thomas February 9, 1995, Exhibit 3-b. Plaintiffs also credit defendants' actions with having cost them thousands of hours preparing for litigation in a frustrating attempt to check defendants' uncivil behavior. Since December 20, 1994, when they began work on the instant matter, it's possible that this case alone has cost plaintiffs well over 400 (possibly closer to 600 hours) hours.]

7

somewhat skeptical by nature, cannot, in all honesty (infra, ftn. 13), completely disregard any possibility that courts in general, certainly with only the very best of balanced justice, have a tendency to allow the Government, "behind procedural roadblocks," to slip away from answering factual claims which might challenge the good faith of their actions.

Therefore, plaintiffs hereby move the Court to schedule an evidentiary hearing on plaintiffs' Motion for a Preliminary Injunction for the earliest possible time. [11]

[11 Plaintiffs appreciate that scores of other parties also have pressing needs, and do not wish to compete for the Court's limited time and resources, but "as soon as possible" does seem to be what the law requires.]