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
The United States, et. al. |
PLAINTIFFS' REPLY TO
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
On July 27, 1995 defendants' filed an opposition to plaintiffs' motion for
summary judgment ("Defts' Opp"). Defendants' Opposition again re-states arguments
made in their earlier pleadings.  For the Court's convenience plaintiffs note below
points on the Record where the salient issues, thus far successfully avoided by
defendants, were initially raised in plaintiffs' earlier pleadings. 
I. PRELIMINARY STATEMENT
Plaintiffs agree that, "the letters from Mr. Robbins and Mr. Myers go directly to
[1 Counsel notes the title of Plaintiffs' Memorandum in Support of Plaintiffs' Motion
for Summary Judgment and for Rule 11 Sanctions. Defts' Opp. pg. 1. As if to
exemplify the method employed to avoid facing the factual heart of this case,
Defendants' Opposition does not engage the issue of sanctions. Compare, Plaintiffs'
Reply to Defendants' Opposition to Plaintiffs' Motion for Sanctions (February 27,
1995), pg. 2); Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion to Strike
the January 20, 1995 Randolph Myers' Letter (February 27, 1995), generally.]
[2 I.e., Second Declaration of William Thomas (February 2, 1995) pgs. 3-5;
Plaintiffs' Motion to Strike Randolph Myers' Letter of January 20, 1995 (February 6,
1995), generally; Plaintiffs' Third Motion for Sanctions (February 9, 1995), pgs. 11-12,
15-25; Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion to Reschedule
the Preliminary Injunction hearing (March 20, 1995), pgs. 24-35; Plaintiffs Motion for
Reconsideration (April 19, 1995), pg. 7; Plaintiffs' Motion for Summary Judgment, and
Suggestion for Rule 11 Sanctions (July 7, 1995), pgs. 4-11.]
the heart of the remaining issues before the Court" (Defts' Opp. pg. 2), but plaintiffs
point out that the animating question before the Court was whether:
Defendants contend, "The matters at issue in this action have been fully
explicated by the parties in numerous previous pleadings." Deft's Opp. pg 1. On the
contrary, the record demonstrates that, while plaintiffs pleadings have approached full
explication, defendants' explications have been one sided.
Until now defendants have relied on scorning the factual issues, and
concentrating on legal technicalities. Finally, defendants apparently feel a need to
submit a sworn declaration.
"defendant Robbins and other defendants in supervisory capacity have placed
freedom of thought and expression, plaintiffs, the general public, and Marcelino
Cornel in particular, in danger by failing to properly oversee a well-armed police
force, although they knew, or should have known, of extra-legal conflicts by
their subordinates toward demonstrates and others in the Park. " Complaint,
Count Six. 
[3 "Allegedly, the shooting of Mr. Corneal was a result of the fact that certain Park
Police officers have improperly enforced applicable regulations against the plaintiffs, and
others similarly situated. At bar plaintiffs assert the killing of Mr. Corneal illustrates the
logical end of a standardless enforcement policy, which is capable of repetition yet
continuously evades the fact finding process." Plaintiffs' Reply to Defendants'
Opposition to Plaintiffs' Motion to Exclude Extra Judicial Materials Obtained by Agents
Working to Afford Defendants Unfair Legal Advantage in the Instant Case (March 27,
1995), pg. 1. infra, RESPONSIBILITY, pg. $]
[4 Defendants' Opposition to Plaintiffs' Motion for Summary Judgment contains not
one reference to Plaintiffs' Statement of Facts, and only one, out of context reference
to Plaintiffs' Summary Judgment Memorandum. Defts' Opp. pg. 1. Devoted to
convincing the Court that Mr. Myers' letter is worthy of serious consideration
defendants' pleading perhaps would be more accurately entitled "Defendants'
Opposition to Plaintiffs' Motion to Strike Randolph Myers' Letter," compare, Plaintiffs'
Reply to Defendants' Opposition to Plaintiffs' Motion to Strike the January 20, 1995
Randolph Myers' Letter (February 27, 1995), generally.]
The facts on Record show that Mr. Myers' Declaration of July 25, 1995, (1)
adds nothing to the evidentiary value of his January 20, 1995 letter, but (2) contributes
considerable weight to plaintiffs' contention of Defendant Robbins' liability. 
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs agree that "the issues remaining before the Court are relatively
straight-forward." Deft's Opp. pg 4. But, it is false to say that those issues are
"essentially not in dispute." Deft's Opp. pg 4. Based entirely on opinions expressed
in Mr. Myers' letter, defendants dispute that plaintiffs "have demonstrated beyond a
doubt, a violation of their rights." Defts' Opp. pg. 1 (this is defendants' singular
reference to plaintiffs' pleading). Although the fact is plain,
Plaintiffs dispute that Mr. Myers' letter is more substantial than a statement of
personal belief,  which also transgresses several Rules of Evidence. 
"It is beyond doubt in this Nation's jurisprudence that nonspeech conduct
sometimes qualifies as expressive conduct protected by the First Amendment.
() Plainly, the alleged coercion of the Plaintiffs not to display their flags in the
case at bar involves such protected nonspeech conduct." Order, April 12,
1995, pg. 19.
[5 At the January 6, 1995 TRO hearing, despite a generous fifteen-day delay to
allow preparation of its case against a TRO, defendants still were "not ready" to put on
witnesses, although Mr. Robbins, was in the courtroom. See, Plaintiffs' Reply to
Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction
Hearing (March 20, 1995), pg. 1, see also, Proposed Order to Dismiss for Frivolity,
January 11, 1995, pg 3.]
[6 See, Defendants' Exhibit 3 (Myers' letter), pg. 2, ¶ 2, compare, e.g., Motion to
Strike (February 6, 1995) pg. 3; Plaintiffs' Reply to Defendants' Response to Plaintiffs'
Motion to Reschedule the Preliminary Injunction hearing (March 20, 1995), pg. 25; Pl's
Memo (July 7, 1995), pg 7.]
[7 Motion to Strike, February 6, 1995.]
With nothing in the Record to suggest that the officer acted reasonably,
defendants interjected Mr. Myers' January 20, 1995 letter. Rightly, the Court held it,
The Court can see plaintiffs activities are not causing harm, threaten no
legitimate government interest, and are protected by the First Amendment. Therefore,
defendants realize, the success of their ploy to transform plaintiffs into criminals
depends on legitimizing Mr. Myers' letter. 
1. MATTER OF LAW
Defendants' Opposition focuses on yet another restatement of their previous
one-sided procedural "argument," i.e., "Marymount Hospital Inc. v. Shalala, 19 F.3d
658 (D.C. Cir. 1994), and Seigel v. Babbitt, 855 F. Supp. 402, 404 (D.D.C. 1994)."
Defts' Opp. pgs. 3 & 6. To maintain this one sided focus defendants ignore plaintiffs'
express contention that Mr. Myers' letter falls short of well established law. I.e.,
"shall not consider the letter at any stage in the proceedings unless and until it
is submitted in a form which has evidentiary value." Order July 3, 1995.
"Plaintiffs also pointed out that, under very similar circumstances, the
Circuit Court has already held,
"'(t)he rule (defendant) was convicted of violating is a substantive
regulation, subject to the APA's procedural requirements but adopted in
their absence. Before a person is threatened with jail for such a
violation, the government must ensure that the rule itself is not in
violation of the law.' United States v. Picciotto, 875 F2d 343, 349
"Characteristically, it appears, defendants' pleadings in this case make
[8 Plaintiffs are not defendants in this case. It may easily seem unreasonable to
dismiss this civil claim on the basis of a baseless argument asserting that plaintiffs are
somehow guilty of offending a criminal regulation which they were never even charged
with violating. See, Pl's Memo (July 7,1995), pg 7, also, Motion for Sanctions
(January 24, 1995) pgs. 2 and 15.]
not one (1) single mention of Picciotto. Rather than addressing the obvious, as
reasoned dialogue and Rule 11 demands, defendants instead introduced the
case of Speigel v. Babbitt, 855 F. Supp. 402." 
If defendants were not ignoring the facts to focus on legal technicalities, their
failure to address the question of whether Picciotto or Speigel is more appropriately
controlling legal precedent in this case might seem less egregious.
A. STARE DECISIS
Defendants are mistaken in representing,
Actually, as the Court has indicated (Order April 12, 1995, pg. 19), in the first
instance, the flag issue was well-settled by Judge Green's October 12, 1990 Order.
At best Mr. Myers' letter is a revisionist work.
2. MATTERS OF FACT
The primary obstruction to understanding in this case is defendants' refusal to
face the facts. Paraphrasing a similar combination of fact and law,
"In the first instance, Indeed, the letters show that the Department of Interior
viewed the scenario presented by plaintiffs' flags as falling within the coverage
of 36 C.F.R. S 7.96(g)(5)(x)(B)(2)." Defts' Opp. pg. 5. 
"In an effort to overcome the obvious, defendants focus on (Mr. Myers'
letter) and argue that each individual act that they were shown to have
committed was lawful, and that they consequently are immune. This argument
[9 Unlike defendants, plaintiffs have fully explicated this particular issue. SEE, Plaintiffs'
Memorandum In Support Summary Judgment (July 7, 1995), pgs. 4-7. After protesting
defendants failure to supply a copy of the letter at issue in Speigel, in the interests of
justice and an accurate understanding of reality, plaintiffs even went to the extreme of
providing the letter. Id. Exhibit 1, see also, Pls" Facts ¶¶ 5-15 (July 7, 1995).]
[10 Indeed, were this established agency policy, why did it take nearly three months
to transmit the information, why were the flags flying without harassment for four
years, and what is the reason for this policy?]
Even if the letter were timely, and even if it was based on stronger authority
than personal opinion, the letter still does not establish that defendants' coercive
threats and intimidations were legitimized under a well-established state of the law.
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, (parenthesis substituting).
A. TRANSMISSION OF THE MYERS' LETTER
There are facts in this case to support a logical assumption that Mr. Myers'
letter was animated by a desire to produce facts which don't exist. Defendants insist,
"The trial court properly excluded expert testimony which was proffered
to prove the (well-established) state of) the law and to support their claim of
absence of willfulness. The expert's testimony had little probative value on the
issue of defendants' states of mind at the time they acted because there was
no evidence that they had relied on his opinion at the time they acted." United
States v. Daily 756 F.2d 1076, 1083-84; cert denied, 106 S. Ct. 574. (1985)."
Moores Rules of Evidence Pamphlet, pg. 94 (1990), (parentheses substituting
for "confusion on"). See, Pl's Memo (July 7, 1995), pg.
Mr. Myers did not initially transmit notification of the letter to Thomas. In fact,
Thomas was notified of the letter's existence when he received it as Defendants
Exhibit 1 appended to Defendants' Opposition to Plaintiffs' Motion to Reconsider
Denial of Plaintiffs' Application for a TRO, or, Alternatively to Dismiss the Complaint as
Frivolous (January 23, 1995), Compare, Motion to Strike, pg. 1.
Moveover, on January 13th, just two days after the parties had appeared
before this Court to discuss the signs and flags, and the same date Mr. Myers' cites
for the photographs he reviewed, a Park Police officer apologized for taking
"Mr. Myers' letter was written and transmitted to plaintiff William Thomas in
response to the letter sent to Mr. Robbins by Mr. Thomas on or about
November 30, 1994." Defts' Opp. pg. 2.
photographs signs which, according to the officer, was "for Court." Declaration of
Ellen Thomas in Support of the Motion to Strike.
B. ANIMUS OF THE MYERS' LETTER
Mr. Myers' letter came to plaintiffs' attention in an effort by the U.S. Attorney to
clothe the naked assertion "that the defendant officers did not act unreasonably."
Defts' Opp. pg. 5. Logically, this fact raises a reasonable inference that the animus of
Mr. Myers' missive was not to "respond to the letter sent to Mr. Robbins by Mr.
Thomas," but rather to concoct evidence in support of the otherwise baseless
contention that defendants were entitled to qualified immunity.
(1) "FLAGS" ARE NOT "SIGNS"
After, counsel admits, "the pleadings in this action have focused on the issue of
the application of the sign-size regulations to the flags, and, indeed, the instant motion
also focuses on that question" (Defts' Opp. ftn. 4), counsel has Mr. Myers declare,
There can be no question, Thomas letter of November 10, 1995 contains not
one single mention of "flags." Another simple fact is, the flag incidents had not yet
occurred on November 10th. These facts should establish beyond any conceivable
doubt that Mr. Myers' letter went beyond a "response to the letter sent to Mr. Robbins
by Mr. Thomas," to include an unsolicited opinion on the legality of flags -- which
"On November 10, 1994, William Thomas wrote to Assistant Solicitor Richard .
Robbins, asking whether Mr. Thomas' signs in Lafayette Park conformed to
National Park Service regulations. Mr. Thomas also asked that if the signs did
not comply, what structural alterations would be necessary to bring it into
compliance with Park Service regulations. As part of my responsibilities, Mr.
Robbins assigned me to review and respond to Mr. Thomas' inquiry."
Declaration of Randolph Myers, July 25, 1995 ("Myers' Dec.") ¶ 3.
weren't even a problem when Thomas' letter was written, but are self-evidently the key
matter presently at issue in this pleading. 
The facts that Mr. Myers, ostensibly replying to a letter about "signs," wrote at
such length about 'flags" (but not until after flags had become part of a federal case),
and counsel now relies on Mr. Myers' flag writing as being at "the heart" of this case,
strengthens the logical inference of the letter as an act of evidentiary legerdemain. 
(2) MR. MYERS' PERSONAL BELIEFS ARE QUESTIONABLE
The undisputed facts are: (1) "Each of Ms. Picciotto's signs themselves is the
proper 4 feet in length and 4 feet in width," and (2) "Ms. Picciotto ... remains free to
display her ... flags in Lafayette Park" (Myers' letter. pg. 2), (3) Ms. Picciotto had been
displaying the signs and flags for years, (4) display of the signs and flags threatens no
legitimate government interest, (5) Ms. Picciotto had a permit allowing "two signs and
two flags." 
[11 Conversely, Mr. Myers' authority is not so broad that he may arbitrarily declare
that some specific mode of display is a crime. ]
[12 The Court has stated "it does not view the matter as frivolous" (Order, February
8, 1995, pg. 9), it seems defendants disagree. They point out,
Assuming Mr. Myers' letter constitutes "well-established" policy, in light of the
generous decisions of the Court's April 12, 1995 Order, there would be absolutely
nothing further to this matter, thereby rendering it "frivolous."]
"By Memorandum Opinion dated April 12, 1995, the Court disposed of all of
plaintiffs' claims save a claim concerning the application of the sign-size
regulations to plaintiffs' display of flags affixed to a stationary sign." Defts' Opp.
[13 That Mr. Myers' "reviewed photographs of Mr. Thomas' as well as Concepcion
Picciotto's signs that were taken on January 13, 1995," adds nothing to the record that
was not contained in his letter. Myers' Dec. ¶ 4, compare, Myers' letter, pg. 2.]
Mr. Robbins' letter (supra, ftn. 9) highlights the most pertinent difference
between Speigel, and the instant matter, the well-established First Amendment, which
requires the government to abide by the principle:
"We believe that the attachment of a banner or flag onto either of her signs ...
violates Park Service regulations." Myers' Letter, pg. 2.
Mr. Myers' beliefs aside, three relevant facts remain, (1) the regulation is not so
narrowly tailored that it states, "no banner of flag shall be attached to a sign," (2)
nothing on the record suggests that requiring a flag be "hand carried" (Myers' letter,
pg. 2), furthers any governmental interest, and (3) there are facts indicating that the
officers may have been acting to suppress free speech. Declaration of William in
Support of the Complaint, ¶¶ 4-5, 18.
Mr. Myers' cannot write after the fact law. See, Picciotto, supra.
(3) DEFENDANTS RELY ON TIMELESS RESPONSIBILITY
Defendants are aware,
"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) (EMPHASIS added); cf, 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.
Defendants are correct on this point, and plaintiffs are not without readily
"Plaintiffs argue against the Court's reliance on the letters of the agency's
counsel as an after the fact rationalizations of the actions taken by the officers."
Defts' Opp. pg. 7
At the risk of seeming hypercritical, the undersigned must honestly admit that
defendants offer argumentation which seems both convoluted and absurd, i.e.,
"(T)he post hoc policy rationalization belatedly supplied by the Director cannot
be thought to provide the necessary binding standards where the
none. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147, 153." United States v.
Abney, 534 F.2d 983, 986; Pl's Memo (July 7, 1995) pg. 3, See also,
(i). THE LETTERS WERE RECEIVED AFTER THIS ACTION WAS FILED
The fact that the letter was not received until long after this suit was filed raises
an inference that the letter was written because the suit was filed The prolific
discussion generated about this letter re-enforces that impression.
Assuming arguendo,  that Mr. Myers' letter constitutes some sort of a
legitimate permit restriction it would still run afoul of well-established regulations and
legal precedent. regarding the timely administration of permit schemes. In light of the
facts that Mr. Myers apparently claims responsibility both for laying down the law, and
for deciding on permit conditions, it seems perfectly reasonable to expect him to "be
responsible" in a timely manner. 
"Indeed, plaintiffs make much of the fact that the letters were received after this
action was filed. This argument completely ignores that the fact that before
this action was instituted, plaintiff Thomas, himself, sought that very
correspondence with the agency seeking an interpretation. Plaintiffs cannot
have it both ways in this action. They cannot ask the agency for its
interpretation of a regulation, file a lawsuit, and then attempt to preclude the
Court from consideration of the agency's response." Id.
[14 Of course the Circuit Court's decision in Picciotto, supra, firmly precludes any
such assumption .]
[15 The C.F.R. itself is time specific on lengthy permit delays:
"A permit application ... shall be deemed granted ... unless denied within 48
hours of receipt." 36 CFR (g)(ii)(E)(3).]
(ii) THAT THOMAS SOUGHT AN "INTERPRETATION" HAS NO BEARING HERE
Thomas' reason for writing the November 10th letter was clearly stated:
Plainly Thomas' letter is as much, if not more, a complaint about unreasonable
behavior by a police officer with respect to First Amendment activity, than a request
for an interpretation. Mr. Myers' late interpretation was of no practical value, because
everything had already happened long before the letter was received. Supra, pg. 6,
United States v. Daily 756 F.2d 1076, 1083-84; cert denied, 106 S. Ct. 574. (1985)."
Although Mr. Myers' Declaration claims responsibility regarding law
enforcement in Lafayette Park, his letter reveals that he hadn't even begun to make
considerations about Thomas' November 10th letter until January 13th.
"PLEASE MAKE THAT INFORMATION AVAILABLE TO ME AS SOON AS
POSSIBLE SO WE CAN DISCUSS POSSIBLE CORRECTIVE MEASURES
THEREBY AVOIDING A BASELESS ARREST, AND THE UNNECESSARY
DISRUPTION OF MY RELIGIOUS ACTIVITY." Thomas letter, pg. 2.