Plaintiffs' Motion for Reconsideration Cont.

4. THE COURT'S DELETIONS RENDER THE COMPLAINT FRIVOLOUS

In this case the Court has failed to consider whether plaintiffs' "vigil" is a "well- established right," although plaintiffs have presented uncontested evidence to that effect. Supra, ftn. 5. By fracturing the complaint, as suggested by defendants' Motion to Dismiss or for Summary Judgment (cf. Motion for Sanctions [January 24, 1995]),

"the Court finds that the conclusory and factual allegations set forth in the Amended Complaint do not even begin to meet the specificity requirements for such an allegation. Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984)" Memo (August 23, 1995), pg. 12, ftn.4.

The Court notes, however, that "public expression in a public forum is subject to

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reasonable time, place and manner restrictions." Memo, ftn. 3. [10] Plaintiffs respectfully submit that the key word here is "reasonable," and, in the context of the instant matter, "reasonable" is a matter for factual determination.

Literally, defendants claim, "Plaintiffs assert little more than that Park Police officers have attempted to enforce the regulations governing demonstrators in Lafayette Park. " Defendants' Motion to Dismiss (January 11, 1995), pg. 1. However, it is that "little more" which plaintiffs allege amounts to a "constitutional violation." [11]

"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. " Reply to Defendants' Memorandum in Opposition to Plaintiffs' Motion for Partial Reconsideration of Court's April 12, 1995 Opinion and Order, pg. 2.

[10 Regarding the sign/flag issue, only one specific factual question has been specified (i.e., permitted flags extended several feet above permitted signs). Defendants have not explained how this specific fact impacts any reasonable or legitimate government interest. Plaintiffs suggest it is an error to assume some legitimate interest in restricting their harmless expressive activity in the absence of any reasonably specific threat. ]

[11 This is a cognizable concern,

"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).]

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To be reasonable, plaintiffs assert, the "pattern and practice" alleged in the Complaint should not be splintered into insulated instances, and then disposed of on the strength of counsel's insinuations that plaintiffs were violating regulations. [12]

"(t)he actions of Officers O'Neill and Keness have been without probable cause. Plaintiffs allege these actions indicate that, animated by political or religious animosity, defendants have entered into a scheme of regulatory enforcement designed to chill, disrupt or terminate the exercise of plaintiffs' constitutionally- protected expressive religious activities in the world's premier public forum." Amended complaint, Count 1.

Plaintiffs alleged that the manner in which Officers O'Neill and Keness were able to repeatedly threaten plaintiffs over different aspects of their vigil "shows the broad standardless nature of the regulations at issue. and how easily those regulations can be used as a pretext to suppress expressive activities." Memo (August 23, 1995), ftn.4.

The specific allegation of intent is here.

"I explained to Officer Keness that I'd been thinking about his behavior for about an hour, and had decided that I didn't think he was crazy. I then explained that, assuming he wasn't crazy, I could only imagine three possible explanations for his actions regarding the flags: (a) he doesn't like Concepcion, (b) he doesn't like what she is saying, or (c) a combination of (a) and (b). After Officer Keness said, 'I'm just doing my job,' I asked, 'Assuming harassing Concepcion about these flags is part of a policeman's job, and there are three Park Police officers stationed on the White House sidewalk twenty-four-hours-a-day, seven-days-a- week, but only a couple of clearly identifiable officers have harassed Concepcion about her flags, wouldn't that mean that most of those police on the sidewalk aren't doing their jobs?" William Thomas' Declaration (December 22, 1994) ¶ 18.

If harassing plaintiffs about flags and signs which were as they had been for months and years respectively, was reasonable why didn't other officers give plaintiffs a hard time? Viewed in a light only reasonably favorable to plaintiffs, it is an error to

[12 E.g., Motions for Sanctions (January 24, 1995), generally.]

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divorce the actions of Officers O'Neill and Keness from plaintiffs' allegation that, [13]

"defendant Robbins and other defendants in supervisory capacity have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Corneil 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 demonstrators and others in the Park." Amended Complaint, Count 6.

It is an error for the Court to determine that (1) Officer O'Neill had reasonable grounds to believe plaintiff was violating the disorderly conduct regulation, and (2) it was reasonable for him to believe that the nine-year-old sign/flag configuration violated a "well established" permit restriction, [14] and (3) that plaintiffs' months old "sign" was a "structure," because these "permit interpretations" weren't articulated until defendants letter of January 20, 1995. [15]

The Court's decision apparently presumes that the permit under discussion (December 21, 1994, Amended Complaint, Exhibit 3 a unique situation which didn't

[13 The Circuit Court has also held that the Supreme Court did not intend to entirely preclude inquiry into a defendant's "subjective" motivation:

"When the governing precedent identifies the defendant's intent as an essential element of plaintiff's constitutional claim, the plaintiff must be afforded an opportunity to overcome an asserted immunity with an offer of proof of the defendant's alleged unconstitutional purpose." Martin v. D.C. Metro. Police Dept, 812 F.2d 1425, 1433, modified, 817 F.2d 144 (D.C. Cir. 1987).]

[14 The fact that the Court first believed that the sign/flag configuration "involves ... protected nonspeech conduct" {Court's Memo [April 12, 1995], pg 19), indicates a jury might agree that the Officers' conduct was objectively unreasonable..]

[15 Because defendants have not contested the accuracy of plaintiffs' allegations, the record is left with a question of subjective good faith and objective reasonableness.

"(A) law enforcement officer may allege and prove in defense his subjective good faith belief that his conduct was lawful and the objective reasonableness of his belief under the circumstances." Glasson v. Louisville, 518 F.2d 899, 909, cert denied, 423 U.S. 930, citing Butler v. United States, 365 F. Supp. 1035, 1045.]

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need clarification until November, 1994 (or January 25, 1995, dependant on when the Court determines the permit restriction became "well established."

Evidence, which plaintiffs should not have to reveal at this stage, would show the permit under discussion is only one of many permits issued by the Park Service (E.g., Declaration of William Thomas, filed this date ¶¶ 3-5), which specifically allowed "2 signs" and "2 flags."

The first official 'notice' I received that the configuration of "2 signs" and "2 flags" violated permit conditions did not arrive until Defendants' Motion to Dismiss, January 23, 1995, Exhibit 1, Randolph Myers' letter, cf. Declaration of William Thomas (December 12, 1995, ¶ 17).

It may not be apparent to the Court that plaintiffs are not referring to a single incident of harassment, but repeated incidents which culminated in the ultimate confrontation with Officer Keness. Complaint, ¶ 13, cf. Declaration of William Thomas, this date ¶ 6.

Claims raising issues of intent, good faith, or other subjective feelings, are ordinarily best reserved for resolution by a trier of fact. See, White Motor Co. v. United States, 372 U.S. 253 (1953). It has been held that a motion to dismiss,

"will not be granted unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." Hospital Bldg. Co. v. Trustees of the Rex Hospital, 425 U.S. 73 (F.R.C.P 12.6).

This complaint would have been frivolous from the beginning had plaintiffs known that the sign/flag display was illegal. Declaration of William Thomas, id. The question is whether a jury, considering all of the allegations in the complaint, would agree that the officers were reasonable, because a permit interpretation suddenly

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declares that an activity (specific display of 2 signs and 2 flags), which has continued everyday in plain sight of millions, is a crime.

5. IT IS AN ERROR FOR THE COURT TO IGNORE A PATTERN AND PRACTICE
CAPABLE OF REPETITION, YET EVADING REVIEW

While the Court has taken little notice of plaintiffs' vigil in this case, it does not pretend to be entirely aware of this factual allegation,

"The Plaintiff in this action, William Thomas, is no stranger to the Court. Mr. Thomas proclaims that, '[s]ince 1981 in the exercise of his religious beliefs [, he] has regularly maintained a continuous presence on the White House sidewalk and southern part of Lafayette Park for the purpose of communicating on issues of peace and social justice.' Amended Complaint at 3 '." Thomas v. Clinton, et al, C. No. 95-1018, Court's Memo (August 31, 1995), pg. 5, ftn. 1.

"Proclaims," or "alleges?" And, if the allegation is uncontested, isn't it a "fact?" If it's a fact, why shouldn't this "continuous presence" enjoy constitutional protection? Notwithstanding dismissal on "official immunity," the judicial system has not previously determined that plaintiffs are not entitled to relief, e.g.,

"Until plaintiffs have applied for such a permit and the Department of Interior or its delegate have acted on such a permit, plaintiffs' constitutional challenge to the Lafayette Park regulations on vagueness grounds must fail. Accordingly, an accompanying Order dismisses both complaints, without prejudice." Thomas v. United States, 696 F. Supp. 702, 711-712.

With the Court's decision in this case, we can see that plaintiffs can apply for a permit, which apparently allows them to do a specific act, be harassed, threatened and intimidated by the police for doing that specific act, file a lawsuit to complain about those circumstances, be advised during litigation that they were, indeed, violating the a

[16 See, Declaration of William Thomas, this date, ¶¶ 7-19]

[17 See, Declaration of William Thomas, this date, ¶¶ 23-28]

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regulation, and thus have their complaint resolved on the premise of "official immunity."

Plaintiffs' believe it is an error for the courts to continue dodging these facts because it creates a climate favorable toward,

"abuse of authority which (logically leads to incidents like) the shooting of Marcelino Corniel, under the pretext of the minor regulations, a graphic demonstration of the result of abuse of legal authority, (which) emphasizes the necessity for this court to protect not only plaintiffs, but the liberty, welfare, and physical well-being of anyone who happens into the abusive path of well- intentioned power gone astray, and of society in general." Amended Complaint, pg. 9, Necessity for Relief.

6. HAS THE COURT CREATED AN IMPRESSION OF PREJUDICE?

In the other recent instant where the Court seems to hold that plaintiff thought something significant happened, but plaintiff was wrong, the Court noted,

" Throughout the period he has been conducting his vigil, the Plaintiff has filed numerous claims with this Court that he has been `arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities'." Thomas v. Clinton, et al, C. No. 95-1018, Court's Memo (August 31, 1995), pg. 5, ftn. 1.

Although the Court demonstrates little sensitivity, the quote comes from the decision in a criminal matter. Thomas v. United States, 557 A.2d 1296, 1297 (1989). And that was not the only time that a court presiding in criminal cases discerned potential significant questions relating to police agents and plaintiffs' expressive activities. E.g.,

"The court's ruling today does not mean that the government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. IT has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed." Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing (March 20, 1995), Exhibit 3, Transcript, United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 84-0255, pg. 1026.

The record also shows that to the limited extent plaintiffs' factual allegations have received judicial review they have been found substantial, and echo the instant claims,

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"The Magistrate is constrained to conclude that the plaintiff is entitled to attempt to establish constitutional violations by individual U. S, Park Police officers, and by any Secret Service officers acting in concert therewith, and whether these incidents constituted a pattern, and thus there was a casual link between them sufficient for the trier of fact to find a conspiracy ar concert of action to harass William Thomas to force him to give up his vigil against nuclear weapons and to rid the White House sidewalk and Lafayette Park of him and his associates and what some might perceive as unsightly and gaudy signs in an unlawful interference with his exercise of First Amendment rights, and in the process, also violative of his Fourth Amendment rights against unlawful arrest of his person and seizure of his personal property and of his Fifth Amendment rights not to be deprived of his property without due process of law." Motion to Recuse (December 27, 1995), Exhibit 3 (Magistrate's Memo, January 13, 1987), pg. 17.

Either plaintiff is making the whole thing up -- which the court should either not assume, or should determine -- or there's something to the allegations. On the civil record plaintiffs' factual allegations have consistently escaped the fact finding process under the pretext of "official immunity." Thomas v. United States, 696 F. Supp. 702, 706. Viewed most favorably to plaintiff's, they are not making it up.

A reasonable person can see there has been an on-going conflict for years, which plaintiffs allege to be a policy intended to prohibit demonstrations "on an incremental basis." Thomas v. United States, 696 F. Supp; 702, 705.

"THE COURT: Let me ask you this ... hasn't it been one of those things there he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."
"THE GOVERNMENT: He plays games.
"THE COURT: Well, I don't know who is playing a game really." United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983, Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing (March 20, 1995), Exhibit 2, pgs. 6 & 7.

The Court should not decide plaintiffs are just "yelling fire" in a crowded theater,

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without first conducting a factual hearing. See, Third Motion for Sanctions (R-49), Exhibit 6, pg. 67, cf, Declaration of William Thomas, filed this date, 13 and 26.

CONCLUSION

Thus, plaintiffs humbly suggest, the Court has erred in failing to abide by the axiom that, "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff." Scheuer v. Rhodes, 416 U.S. 232, 236 (1979), 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).

Respectfully submitted,

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

CERTIFICATE OF SERVICE

I hereby state that, on August ___, 1995, I served a copy of the foregoing Plaintiffs' Motion for Reconsideration of the Court's August 23, 1995 Order, by first class U.S. mail, postage prepaid, upon the office of the United States Attorney for the District of Columbia at 555 4th Street NW, Washington, D.C.