Memorandum - Discussion

DISCUSSION

Once it resolves the TRO issue the Court will arrive at the point of considering Defendants' Motion to Dismiss, where the burden of proof is less stifling, and "plaintiffs are entitled to all favorable inferences which may be drawn from [the] allegations." Scheuer v. Rhodes, 416 U.S. 232, 236.

With all respect to the Court, plaintiffs must admit they can't fathom what difference a burden of proof should make, when, thus far, defendants have done nothing but (1) avoid proving anything, or (2) obstruct plaintiffs from proving anything. [16] See, Motion by Plaintiff William Thomas to Withdraw the His Motion to Dismiss for Frivolity, filed February 6, 1995.


[16 Defendants purport, conceivably, for the improper purpose of confusing litigation with the insertion of a little red herring, plaintiffs "seek to avoid a resolution of the merits of their complaint." Opp. TRO. pg. 1. Counsel certainly can't be referring to the "factual merits of the complaint."
But, if defendants have pointed a finger regarding "avoiding resolution of the merits," while in reality, counsel is really attempting to mask the truth via a deceitful perversion of process, not only would the U.S. Attorney be liable under Rule 11, but, also in jeopardy of the greater danger of advancing a hypocritical argument. LUKE, 11: 46-52.]

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Axiomatically, the Court must begin from some factual premises. Yet, defendants offer none. Mr. Meyers' letter falls short of addressing some substantial questions which still (supra, footnote 15) require examining testimony, evidence and subjective states of mind.

For example, plaintiffs have plainly written that they "are not challenging
Officer O'Neill's duty to enforce the 'camping' regulation. Instead plaintiffs assume
the position that, assuming Marcelino was 'camping,' Officer O'Neill had only three
legitimate options (warning him, issuing a citation, or arresting Marcelino), and
that when Officer O'Neill kicked Marcelino and jabbed Marcelino with a nightstick,
Officer O'Neill exceeded his official authority and committed the criminal act of
assault. Complaint, para. 20." Proposed Order to Dismiss as Frivolous, page 8.

True, plaintiffs had made similar claims of abusive enforcement practices in the past (e.g., Exhibit 6, pg. 42), but the factual aspects of those claims still remain unresolved, and it is precisely those unresolved questions that permitted Officer O'Neill to mistakenly believe he could kick somebody if he thought the person might be "camping."

Unless this complaint and (in Marcelino's case) human life are frivolous, some questions deserve sober thought: "Did or didn't Officer O'Neill assault Marcelino?" - "Was or wasn't Marcelino 'camping' in Lafayette Park on the morning he was killed?" As previously noted (Plaintiffs' First Motion for Sanctions, pgs. 13. 14), Mr. Robbins is the man to talk about with respect to enforcement of the "camping" regulation. Mr. Meyers' letter doesn't even mention "camping," so we can't even begin to pretend that the letter might substitute for testimony

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and cross examination. Camping aside, Mr. Meyers' letter also leaves big holes in the areas it tries to address.

In light of the position which defendants have placed us all in, they bear the taxing burden of having to come up with some well-established" (as applied to the instant matter) REGULATORY

"framework for analyzing a claim of qualified immunity by a federal official
'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'." Defendants' Motion to Dismiss, pg. 17,
citing, Hallow v. Fitzserald, 457 U.S. 800(1982).

Whether defendants' "conduct does (or does) not violate clearly established statutory or constitutional rights" is, in the case at bar, a question standing squarely upon a "well- established" framework for non-abusive enforcement of the perfectly valid REGULATIONS codified at 36 C.F.R 7.96(g) (5)(x)(B)(1)(2). For the Court's convenience a copy is attached.

The Court is urged not to forget it was alleged that defendants' intentions were malicious. E.g., Declaration of William Thomas in Support of the Complaint, para 18. [17] According to "the (same) law" which we are all "obliged to follow,"

"(A)n official would not receive qualified immunity if he 'knew or reasonably
should have known that the action he took within his sphere of official
responsibility would violate the constitutional rights of the [plaintiff] or
if [the official] took the action with the malicious intention to cause a
deprivation of constitutional rights or other injury'." Hobson, id, 24, citing Wood
v. Strickland, 420 U.S. 308 at 322.


[17 Here plaintiffs meet the impermissible animus requirement.]

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