The Court was able to perceive that plaintiffs alleged a number of incidents which,
[5 Defendants do not contest plaintiffs contentions that (1) their expressive activities
are religiously motivated (see, plaintiffs' Declarations in Support of the Amended
Complaint), (2) "vigils" are expressly] recognized as permissible expressive activity (36
C.F.R. .96(g)(1)(i)), (3) that a "continuous presence" should be precluded from Lafayette
Park (Federal Register, March 5, 1986, pg. 7559), or (4) that plaintiffs activities were
likely to be understood. Declaration of William Thomas, February 9, 1995, Exhibits 1-3.]
[6 We believe the custom is for the Court to be more inquisitive.
" When the executive or administrative process abridges constitutional
rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court
rather than the agency that must balance the competing interests. The question
in this case is not whether some support for (defendants' ex post facto regulatory
enforcement rationalization) may be adduced, by reference to evidence in the
record and a claim of [official immunity, or] reasonable inferences or concerns, but
is whether the regulations at issue here are 'unnecessarily restrictive for the
purpose they are designed to serve." Quaker Action Group v. Morton, 516 F.2d
717, 722, see also, id. ftn. 2, citing United States v. O'Brien, 391 U.S. 367, 377 ;
Shelton v. Tucker, 364 U.S. 479; United States v. Robel, 389 U.S. 258, 268.]
5
taken together, indicates that Officers O'Neill and Keness displayed a hostile interest in
plaintiffs' allegedly "expressive, religiously motivated activities."
"The Plaintiffs' suit arises out of allegations that the above named Officers
harassed the Plaintiffs 'under color of various CFR and D.C. regulations' ...
Amended Complaint, p. 3. First, the Plaintiffs allege that Officer O'Neill falsely
arrested Plaintiff William Thomas for disorderly conduct, which deprived the
Plaintiff of his First Amendment rights. Second, the Plaintiffs argue that Officers
O'Neill and Keness informed Plaintiff William Thomas that a sign the Plaintiff
erected in the Park qualified as a "structure" banned under 36 C.F.R. S
7.96(g)(5)(x)(A)(4), and that the Plaintiff was therefore subject to arrest and the
sign subject to confiscation unless the Plaintiff removed it. Third, the Plaintiffs
argue that Officers O'Neill and Keness pressured Plaintiffs ... to remove two flags
from the Park 'under color of a CFR regulation.' Amended Complaint, p. 4. The
Plaintiffs assert that the Officers pressured the Plaintiffs despite the Plaintiffs'
alleged exemption from the applicable CFR regulations and the Plaintiffs'
possession of valid permits for the flags. Fourth, the Plaintiffs claim that Officers
O'Neill and Keness threatened to charge Plaintiff Concepcion Picciotto with a CFR
violation unless she removed a plastic cooler from the Park. Finally, the Plaintiffs
allege that Officers O'Neill and Keness often threatened to arrest the Plaintiffs for
unlawfully camping in the Park. The Officers also allegedly kicked the Plaintiffs,
prodded them with nightsticks, and banged on the Plaintiffs' signs." Court's
Memorandum (April 12, 1995), pgs.3-4. [7]
Ultimately the Court reduced plaintiffs' factual allegations to nothing more than a
question of the sign/flag configuration. Memo (August 23, 1995), ftn. 2. Because the
factual allegations of the complaint must be presumed true and liberally construed in favor
[7 Plaintiffs' suggest the Court has not considered that,
"government agen(t)s by their very nature (may be) driven to overregulate public
forums to the detriment of First Amendment rights, that facial viewpoint -neutrality
is no shield against unnecessary restrictions on unpopular ideas or modes of
expression, and that in this case in particular there was evidence readily available
that should have impelled the Court to subject the Government's restrictive policy
to something more than minimal scrutiny." Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 316 (parentheses substituting).]
6
of plaintiff (Conley v. Gibson, 355 U.S. 41, 45), plaintiffs believe, it is an error [8] for the
Court to separately dismiss each of plaintiffs' factual allegations without presuming that
plaintiffs' "vigil" is constitutionally protected, and to proceed in that light. [9]
[8 Plaintiffs do not believe this oversight is the correct approach.
"We are concerned with the possibility that this drawn out litigation has, to
this point, reflected an insensitivity ... to the consideration that there are 'park
values' in the use of these parks for speech and demonstrations. It is our
contemplation that the Park Service will evolve coherent policies reflecting the
concerns identified in this (Complaint), and thereby obviate the continual
involvement of the courts in what should be essentially matters of park
administration and local police responsibility." A Quaker Action Group v. Morton,
516 F.2d 717, ftn. 40 (parentheses substituting).]
[9 Other courts have recognized this vigil as constitutionally protected.
"(L)et us make some findings of fact. We are in an area where a vigil
protected by the constitution and by a governmental permit has been taking
place [since June 3, 1981]. It is a vigil that was described in the testimony of
the government witnesses as, quote, the Thomas Vigil, end quote." Plaintiffs'
Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the
Preliminary Injunction Hearing, (March 20, 1995), Exhibit 3, (Transcript, United
States v. et. al., USDC Cr. 85-255, ps. 1014, 1015, September 25, 1985).]