Plaintiffs' Memorandum Continued


D. DEFENDANTS' MOTION TO DISMISS
1. HEIGHTENED PLEADING STANDARD

As if to undercut their "heightened pleading standard" argument, defendants begin with "a short, plain statement" (Federal Rules Civil Procedure, 8) of fair notice:

Defendants note that the Court of Appeals has elaborated on the demanding nature of the heightened pleading standard.

However, other courts have held, and the Whitacre court says no different, this principle does not imply Government agents may do as they please with impunity.

Discussing the "heightened pleading standard," the Supreme

18

Court cautioned that courts should not "equate() freedom from liability with immunity from suit." Leatherman v Tarrant County Narcotics Intelligence Unit, et. al., 113 S.Ct 1160, 1162 (1993).

a. OFFICER KENESS

Plaintiffs have pleaded specific, discernible facts of intent to support a reasonable inference that Officer Keness was improperly motivated. For example, Thomas declared:

The specific allegation of intent is here. Defendants have neither contested the accuracy of the allegation, nor offered an alternative intent. So the record is left with a clean cut question of subjective good faith and objective reasonableness.

19

cert denied, 423 U.S. 930, citing Butler v. United States,
365 F. Supp. 1035, 1045.

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).

b. OFFICER O'NEILL

In support of their argument to dismiss claims against Officer O'Neill, defendants finally submitted something which plaintiffs can concede would approximate "evidence." Defts' Reply (February 14, 1995), Exhibit 2, Officer O'Neill's Supplemental Criminal Incident Record (March 23, 1994).[21]

Comparing Officer O'Neill's and Thomas' versions of the alleged incident (Declaration, December 22, 1994, paras. 4-6), we arrive at the uncontested facts that (1) on March 23, 1994, (2) the arrest took place, (3) it was preceded by conversation between Thomas and Officer O'Neill, (4) "overall the tone of (which) was amiable," (5) concerning First Amendment expression and (6) an individual named Aesfyza Esyedepeea (or Esyededeea), and (7) at some point prior to the arrest Thomas suggested to the effect that Officer O'Neill "climb a flag pole." [22]

[21 It was commendable for defendants to at last provide some common basis from which to begin assessing the facts of at least one incident.]

[22 According to Officer O'Neill, Thomas, who "was amiable," later "began jumping up and down and shouting," before "he then ran around the park," all the while taunting Officer O'Neill, while the good Officer "held the seat of his bicycle." Then, "(a)pproximately one minute later (Thomas, who, a jury will see, is probably twenty years Officer O'Neill's senior) returned and sat down at (Officer O'Neill's) feet." Finally, Officer O'Neill "told (Thomas) he was under arrest," presumably, "because of THOMAS' antics a group formed, initially of the other demonstrators and homeless who frequent the park and then of tourists who had come from a bus." Defts' Reply Exhibit 2, see also "Demonstration," ftn. 1, supra. (EMPHASIS in original.)
Plaintiffs dispute this version of the story, but believe Park Police radio tapes covering 1730 to 1930 hours on March 23, 1994, together with testimony and cross-examination of the parties and "the other" witnesses to the event, should help to determine more precisely where the truth lies between two disparate versions of an implausible arrest story.]

20

But those undisputed facts are not enough to establish that Officer O'Neill had "probable cause" to arrest Thomas.

Upon closer comparison of the two versions of the incident it becomes evident that each party makes claims to which the other party makes no reference.

Most significant, plaintiffs submit, is Thomas' claim that:

  • "As I walked away Officer O'Neil asked me whether CONCEPCION'S bicycle was registered. Because it seemed obvious that I was not the appropriate person to be asking about the registration of CONCEPCION'S bicycle, in addition to the fact that Concepcion's registration sticker was clearly visible, I told Officer to climb a flagpole." Declaration of William Thomas (December 22, 1994), para.6.

Crediting Officer O'Neill's account of the incident, the reader may be led to assume that he acted from some concern over Thomas' "tirade against AESFYZA." Defts' Reply, Exhibit 2.

Plaintiff denies this; however, if there had been a tirade, there is still evidence in the Record which would permit a reasonable mind to infer that Officer O'Neill acted on Aesfyza's behalf due to a personal predisposition against plaintiffs.

"Officer O'Neill expressed predisposition to Mr. Aesfyza's
illegal activities as opposed to Picciotto's

21

constitutionally-protected activities." Op cite, para 5,
see also, Declaration of Concepcion Picciotto (December 22,
1995), para. 5.

These factual allegations raise "genuine issues that properly can be resolved only by" trial. Anderson v. Liberty Lobby, 477 U.S. 317, 324 (1988).

"Defendants must do more than simply show that there is
some metaphysical doubt as to the material facts."
Frito-Lay v. Willoughby, 863 F.2d 1029, 1034.

On the scanty evidence defendants have deemed fit to submit, seen in a light only reasonably favorable to plaintiffs, Officer O'Neill's bid for dismissal under the heightened pleading standard must fail.

c. RICHARD ROBBINS

Defendants' only other attempt to introduce "evidence" into this matter did aid in establishing at least one fact:

  • "Plaintiffs would agree that the letter of Mr. Myers, who was acting on behalf of Mr. Robbins, might qualify as evidence that Mr. Robbins is vested with the very responsibility which plaintiffs have alleged (Amended Complaint, pg. 2 & COUNT 6), but which counsel appears to deny (Deft's Motion to Dismiss, pg. 4)." Plaintiffs' Motion to Strike (February 6, 1995), pg 6, n. 4.

In any event, it remains undisputed that Mr. Robbins:

  1. bears ultimate responsibility for advising the Park Police on enforcement of the regulations,
  2. had notice of alleged police misconduct, but
  3. took no action in response to those allegations.

    4. At the January 6, 1995 hearing plaintiffs stated that Mr. Robbins, who was the only Government witness plaintiffs would need testimony from, was seated at defense table.

    Under the heightened pleading standard, the crucial question is whether the actions that plaintiff alleges defendants have

    22

    taken are actions a reasonable official could have believed to be lawful. Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987).

    "The ultimate issue in the present case is (defendants')
    subjective state of mind." Thomas v. United States, 557
    A.2d 1296, 1300 (substituting).

    Defendants can't, of course, deny that they all share some common interest in plaintiffs' expressive activities, symbolic vigil, signs, flags, or, crediting Officer O'Neill's Report, the manner in which Thomas may "gesticulate" during a conversation. supra, pg. 23 $$. Thus they have no defense except to argue they are only "doing little more than" their job.

    But that isn't enough to answer the "crucial question." [23]

    • "Petitioner argued that although she had no knowledge of an agreement between (defendant) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at 157.

    Proof would be necessary to prevail at trial. However, at this point, "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).

    d. OFFICER "X"

    [23 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).]

    23

    "Even before the adoption of the rules, the Seventh Amendment right to a jury trial historically had never been considered to extend to such jurisdictional issues as service of process, amount in controversy, of diversity." Leichtman v. Koons, 527 A. 2d 745 (1987).

    2. QUALIFIED IMMUNITY

    With concerns in mind toward avoiding bothersome frivolous cases, the Supreme Court has held:

    • "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

      The Court has declared that
    • "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640. (citations omitted).

    This is where Mr. Myers' letter comes in. Due to the fact that defendants lacked a well-established enforcement policy to explain their interactions with plaintiffs' expressive activities, Mr. Myers' letter sought to supply one.

    a. RANDOLPH MYERS' LETTER OF JANUARY 20, 1995

    Randolph Meyers' letter of January 20, 1995 was not even in existence when defendants filed their Motion to Dismiss. [24]

    [24 For further discussion of this letter see, Motion to Strike (February 6, 1995), and Third Motion for Sanctions (February 9, 1995), pgs. 18-28.]

    24

    "First, the January 20th Myers' letter is directly
    responsive to the letter filed by the plaintiff and merely
    makes for a more complete record." Defts' Reply, pg. 13.

    Viewed chronologically, the letter cannot be what defendants claim. It specifically purports to "respond to (Thomas') letter to Richard Robbins dated November 10, 1994," yet fully half of the two-and-a-quarter-page letter "responds" to incidents which didn't occur until December, and which, outside the instant action, plaintiffs never addressed to Mr. Robbins. [25]

    At best, here is a very tardy post hoc letter, which isn't nearly what it claims to be, which hypothecates, "we believe your signs ... fail to conform." Nevertheless defendants optimistically press credibility:

    • "Rule 803(8) (C), Fed.R.Evid., this letter is not excluded by the hearsay rule, regardless whether Mr. Myers was available as a declarant. Accordingly, the Court can properly consider this letter in ruling on the pending papers." Defts' Reply, pg. 13.

    The court will, of course, do as it pleases, however it surely needn't follow defendant's bold suggestion.

    • "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

    [25 Curious that the letter isn't what it seems to be, plaintiffs started thinking. After realizing that they received notice of the letter as an attachment to Defendants' Opposition to Plaintiffs' Motion to Reconsider Denial of the TRO or Alternatively to Dismiss the Complaint as Frivolous (January 23, 1995), before they received a copy in the mail plaintiffs really began to wonder whether the letter wasn't actually a somewhat underhanded trick. Declaration of William Thomas in Support of the Motion to Strike (February 6, 1995).]

    25

    F.2d 1076, 1083-84; cert denied, 106 S. Ct. 574. (1985)."
    Moored Rules of Evidence Pamphlet, pg. 94 (1990),
    (parentheses substituting for "confusion on the").

    i) FLAGS

    "As the defendants have previously pointed out, the
    plaintiffs are free to display the flags as long as they are
    hand-held." Defts' Reply, n. 6.

    But there are a couple of catches:

    aa. CATCH 11

    "First, Mr. Thomas asserts that Judge Green found that the flags 'had been seized without probable cause'." [26] Defts' Reply, pg. 8. But first, let's look, in pertinent part, at the Order itself.

    • "On September 18, 1990 plaintiffs filed motions for a writ of mandamus and for a temporary restraining order, alleging that on or about June 13, 1990, park officers seized two flags used by plaintiffs in violation of their first amendment rights.
      "On September 24, 1990 opposition to plaintiffs' motions, defendants contend that the flags were seized because they were affixed to a sign, thereby making the signs larger than permitted by regulation, and that the flags may be used as evidence in a possible criminal proceeding. ()
      "Defendants subsequently informed the Court on October 4, 1990 in a supplemental memorandum concerning plaintiffs ... that the Criminal Division has now decided that it will not prosecute Picciotto for her June 13, 1990 violation' and that 'in light of that decision defendants have no objection to the return to Picciotto of her flags." Huddle v. Reagan, 88-3130, Order October 12, 1990; Defts' Reply, Exhibit 3.

    [26 After Thomas had written to Mr. Robbins on November 10, 1994, what plaintiffs actually said was, "the same officers ... continued to invent new pretexts to justify regulatory abuse against expressive activity. (Complaint) Exhibit 1.

    "One such pretext has centered on two flags, which, as indicated by previous opinions of this court, have long been used by the White House Vigil, and abused by the defendants. E.g., (Complaint) Exhibit 2."]

    26

    It's plain the "decision not to prosecute" was not a rush to judgment. The "Criminal Division" pondered whether to prosecute for more than four months before finally deciding to throw the case out. [27]

    Given the facts that (1) "park officers seized two flags used by plaintiffs in violation of (plaintiffs') first amendment rights," (2) "the Criminal Division ... decided ... not to prosecute," and (3) the Court Ordered "that the flags be made available for return to plaintiffs as immediately as possible," it certainly seems reasonable to infer defendants should have known that the system of judicial process (Criminal Division and/or U.S. District Court) had sent them a clear message that "flags affixed to signs DO NOT make the signs larger than allowed under the regulation." [28]

    Before defendants might have had a good faith reason to believe Officer O'Neill could legally torment plaintiffs under color of flags attached to signs, they must at least have obtained some assurance that the Criminal Division had since changed its mind and was now willing to prosecute cases in which "flags" allegedly turned "signs" into larger signs. See, Third

    [27 For the interested reader, the other pleadings mentioned in the Order (deleted here for pertinence sake) raised other interesting, unresolved, issues. For example, plaintiffs' Motion of September 28, 1990 claimed that the decision not to prosecute had actually been finalized on September 14, 1990.]

    [28 Additionally, the Court's Order imbued plaintiffs with good faith reason to assume that the 1990 incident had decisively resolved the flag issue in their favor. Since Judge Green's Order, park officers had not harassed plaintiffs over the flags until Officer O'Neill rekindled the practice in 1995.]

    27

    Motion for Sanctions (February 9, 1995), pg. 20.

    • "(Plaintiffs) have attacked the good faith of the (defendants) in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities. If these allegations state a claim under the Civil Rights Act, as we believe they do (cites omitted), the interpretation ultimately put on the statutes by the state courts is irrelevant.... It would not alter the impropriety of (defendants') invoking the statute in bad faith to impose continuing harassment in order to discourage (plaintiffs) activities, as (defendants) allegedly are doing and plan to continue to do." Dombrowske v. Pfister, 380 U.S. 479, 490 (parentheses substituting).

    bb. CATCH 22

    If defendants aren't playing a game, how can they repeatedly make the same mistake? E.g.,

    • "(T)he post hoc policy rationalization belatedly supplied by the Director cannot be thought to provide the necessary binding standards where the regulation has none. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147, 153." United States v. Abney, 534 F.2d 983, 986.

    Although exempt from permit requirements, [29] from time to time (e.g., Thomas v. United States, 696 F. Supp. 702, 712-716 (DDC 1988)), plaintiffs have obtained permits from the National Park Service.

    • "(E)ven if Ms. Picciotto possesses a demonstration permit, [30] the National Park Service's regulations still apply to permittees." Myers' letter; Deft's ROMD, pgs. 8,9.

    [29 In pertinent part 36 CFR 7.96 (g)(2)(i) provides, "(d)emonstrations involving 25 persons or fewer may be held without a permit...."]

    [30 Plaintiffs believe that Concepcion has a "right" to have two flags and two signs. "Rights" are inalienable. A "permit," on the other hand, permits a person to do something which, like driving, is not a "right." However, in an effort to exercise that "right" without being terrorized by defendants, she compromised and got a "permit." ]

    28

    Before crediting Mr. Myers' letter without subjecting it to the fact-finding process (Daily, supra), the Court may consider -- as plaintiffs believe the Circuit Court has already done in a strikingly similar situation -- that

    • "(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 (1989).

    On its face Mr. Myers' letter is little more than a notice of permit limitation, [31] of a sort which has been held an invalid abuse of the Administrative Procedures Act.

    • "A permit may contain additional conditions and time limitations. By its own terms, the language allows the Park Service only to attach specific limitations to individual permits as part of its permit-granting procedure, not to adopt rules applicable to the general public." Picciotto, supra, at 348.

    The letter goes on to impose specific limitations on the holder of a permit which the permit did not specifically impose. Certainly defendants may "believe" as they wish, however the process, at least until recently, required that:

    • "The limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1971)." Picciotto, supra, at 347.

    Magnanimously, Mr. Myers is prepared to allow that,

    "If Ms. Picciotto hand-carried her banners or flags, instead of attaching them to her signs, no violation would occur."

    Although they enumerate a number of significant Government

    [31 A copy of Ms. Picciotto's permit was affixed to the Complaint, Declaration of William Thomas, Exhibit 3.]

    29

    interests (Defendants' Opposition TRO (January 23, 1995), pg. 5, 15 lines), even taken together with everything else in the record, Mr. Myers' letter does nothing to link any of those legitimate Government interests to plaintiffs' activities.

    Without a rational connection between allowing both "flags" AND "signs," but prohibiting "flags" being "attached" to "signs," defendants have no case. Volpe, supra, and Burlington, infra.

    It is a well-established literal fact that:

    • "Symbolic expression of this kind may be forbidden or regulated IF the conduct itself may constitutionally be 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)." CCNV, 486 U.S. 288, 315. (EMPHASIS added).

    Finally, assuming the letter actually responds to Thomas' November 10, 1994 letter to Mr. Robbins, it runs afoul of another principle Mr. Robbins knew, or should have known.

    • "The 19-day delay runs afoul of principles in A Quaker Action Group v. Morton, 515 F.2d 7617, 735 (1975) (a fixed deadline for administrative action on an application for a permit 'is an essential feature of a permit system.' 24 hours suggested as maximum time for action, permit to be deemed granted if no action is forthcoming within the time limit). See Shuttlesworth v. Birmingham, 394 U.S. 147, 162- (D.C.Cir 1976).