Memorandum - Issues At Bar

ISSUES AT BAR

If only to avoid creating an impression of unbiased partiality, plaintiffs pray, the Court will resign itself to the fact that the time is ripe to determine exactly "who is playing a game really," and what kind of a game is it?[11]

Immediately the questions are whether to
(1) Reconsider, and

[11 This is a personal choice: will one serve Justice? See, MATTHEW, 6: 24.]

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grant a plaintiffs a TRO,
(2) sanction defendants, and
(3) hear some evidence, or
(4) dismiss the complaint. Compare Opp. TRO, pg. 1, first 7 lines, factually unsupported opinion.

Although defendants insist they haven't, plaintiffs believe they have met the "public interest" prong of the TRO test. E.g.:

"Officer O'Neil's abuse of authority which preceded the shooting of Marcelino Corneil,
under the pretext of the minor regulations, is a graphic demonstration of the result
of abuse of legal authority, and 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." Complaint, Necessity for Relief, see also, eyewitness Declaration of
Wade Varner, in Support of the Complaint, compare, Opp. TRO, pg. 2, 3 lines, factually
unsupported opinion.[12]

If defendants had really wanted to play fair, thus sparing themselves the extraordinary effort of having to oppose a motion for Sanctions, [13] they could have had Officer O'Neill come to Court on January 6, 1995, and accuse plaintiffs of making the whole thing up, or whatever. Instead, they just said, "The Government is not prepared." [14]

[12 Defendants refuse to admit plaintiffs have met the a SECOND PRONG OF THE TRO TEST. Supra, footnote, cf. Opp. TRO, pgs. 4,5, (tabulated above). Suppression of First Amendment exercise has been held to constitute "irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976), and to constitute "substantial money damages." City of Watseka v. Illinois Public Action Council, 796 F.2d 1559, Summarily Affirmed by the Supreme Court, slip opinion 86-631, January 27, 1987.]

[13 This point is particularly telling, since defendants had what quite possibly may be the longest period of time to prepare for a simple TRO hearing in all of human history.]

[14 The Court might ask counsel, "Can you point to an instance in the Record of this case when defendants have approached closer to the facts of this case than the Motion to Dismiss the complaint against the unidentified triggerman, 'Officer X,' because of the fact that plaintiffs have not made service upon him?" Defendants' Motion to Dismiss, footnote 2. compare, Plaintiffs' Motion for Sanctions, filed January 24, 1995.]

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Now, they've filed this Opposition, which, if had any link to reality, would explain why a Government agent who suspects someone of violating the well established "camping" regulation, knew, or should have known that kicking the suspected camper was covered under the umbrella of his official authority. Defendants nearly ignore this point, except to incorrectly opine, amid several lines of conclusive distortions of the Complaint:

"(D)emonstrators who Park Officers believe are violating the camping regulation have
been awakened." PERIOD. Opp. TRO pg. 4, 5, amid 10 lines of unsupported
opinion, plus 3 lines of opinion supported by Randy Meyers' Letter.[15]

[15 Under stare decisis *** perhaps the closest to real argument amidst 115 lines of characterization, factually unsupported opinion and ad hominem *** defendants can only say, "We've been doing this for years; the courts have never before bothered to check us, or let plaintiffs, even when they're defendants, get to the facts; so this Court shouldn't be swayed by facts now."
However this argument runs against the more honorable stare decisis noted (supra) by Magistrate Burnett, Judges Bryant, Richey and Justices White (dissenting with Leatherman), see also, Justices Marshall and Brennan, CCNV, supra, footnote 9.
Plaintiffs submit that one of only two cases in which an objective assessment of a "camping" arrest resulted in a meaningful hearing occurred, ended after seven days with the conclusion that:

"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....

"To continue with this trial would transform the trial from a prosecution
into a persecution, and, accordingly the respective motions for judgment of
acquittal are ... granted." App. p. 146, Docket # 45, Exhibit 105, ps. 1026,
Transcript, United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 84-255
(1984). The second case, United States v. Casimer Urban Jr., USDC 84-00309,
J. Norma H. Johnson, ended in acquittal in October, 1984. ]

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Rather than addressing plaintiffs' good faith perceptions, defendants decided to interpose, quite possibly for some "improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation" (Westmoreland v. CBS, 770 F.2d 1168, 1173), an argument grounded neither in fact, nor law, i.e.:

"The plaintiffs launch an ad hominem attack on this Court..." Deft's Memo, pg. 1
(14 lines), compare, Second Declaration of William Thomas, filed this date.

"Although (defendants insist) the plaintiffs make sweeping, conclusory allegations (about) two flags," plaintiffs think their allegations are more than conclusory: E.g.,

"One ... pretext (for punishing or disrupting the free expression of thought) 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., Plaintiff's
Exhibit 2." Declaration of William Thomas in Support of the Complaint, para. 11.

These allegations are not so "conclusory," that a reasonably literate person with a little patience would have any trouble finding Exhibit 2. If counsel failed to notice Exhibit 2, that could be sanctionable:

"Why does the Rule require the attorney to certify that he has read the papers?
() There is no room for a pure-heart empty-head defense under Rule 11." Sanctions
Under The New Federal Rule 11, A Closer Look, 104 F.R.D. 186, 187. (1985).

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That is just the type of argument defendants offer here. Perhaps they shun Exhibit 2 (Order, Huddle v. Reagan, USDC No. CA. 88-3138, October 12, 1990) because it contains the words:

"park officers seized two flags used by plaintiffs in violation of their First
Amendment rights." Order, Huddle et. al. v. Reagan et.l al, CV 88-3130,
October 12, 1990.

The Court should ask whether defendants omit this little bit of stare decisis from their argument because to admit it would expose their "didn't know, or shouldn't have known" sovereign immunity defense as nothing more than pettifoggery, which would also be grounds for sanctions.

SIGNS

In a light most favorable to defendants, Mr. Meyers' letter (as close to a "fact" as defendants have dared venture, Opp. TRO, pg. 4; 7 lines of possible subterfuge) helps set up a couple of uncontested facts about signs:

(1) "each of Ms. Picciotto's signs ... is the proper 4 feet in length and 4 feet
in width,"

(2) While Mr. Meyers' letter gives no indication that Thomas' signs are other
than "the proper 4 feet in length and 4 feet in width," the Record does contain
evidence that those signs were the proper dimensions (e.g. Thomas Declaration
in Support of the Complaint, Exhibit 1), and:

FLAGS

Continuing to look at this in a positive light, Mr. Meyers' letter also helps clarify at least three uncontested facts concerning "banner(s) or flag(s)":

(1) a "banner or flag" and a "sign" are two distinctly different things,

(2) "Ms. Picciotto ... remains free to display her banners or flags in Lafayette
Park... (under circumstances where) no violation would occur,"

(3) "Ms. Picciotto possesse(d) a demonstration permit"

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(see also, Declaration

of William Thomas in support of the Complaint, Exhibit 3).

Before the Court accepts the remaining legal opinions in Mr. Meyers' letter, however, it should determine how Mr. Meyers can honestly deny that he should have known "flags" had been seen to merit "First Amendment" protection, after both he and Robbins were personally involved in the very hearings which convinced Judge Green to utter Exhibit 2. See, Exhibit 7, hereto.