Memorandum in support of Plaintiffs' Motion for Sanctions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SANCTIONS OR
OTHER DISCIPLINARY ACTION,
OR ALTERNATIVELY TO DISMISS THIS ACTION AS FRIVOLOUS

On defendants' behalf, the U.S. Attorney's Office filed a Motion to Dismiss and Memorandum (hereinafter, "Def's Memo"). Plaintiffs submit that defendants' Motion contains enough factual mistakes and/or misrepresentations, used in support of enough baseless arguments, to merit impositon of sanctions.

"(S)anctions may be imposed, if a reasonable inquiry discloses the

... motion ... is (1) not well grounded in fact, (2) not warranted by

existing law or a good faith argument ... or (3) interposed for any

improper purpose...." Westmoreland v. CBS, 770 F.2d 1168, 1174.

From the onset defendants' Motion is founded upon a premise which has absolutely no bearing on the factual or legal matters raised by the complaint:

"Plaintiffs assert that these regulations, as they apply to

'structures' and 'camping' are vague and are subject to arbitrary

enforcement...." Defs' Motion, pg. 1.

Plaintiffs agree [1] that -- excepting the District of Columbia Disorderly Conduct regulation (Amended Complaint "Am. Com," pg. 3) -- "these very regulations have been upheld against numerous challenges." See, cases cited, Def's Memo, page 2.

But the legitimacy of those regulations does not entitle defendants' counsel to fabricate an empty defense, i.e.:

[1 If memory serves correctly, a close approximation of the first thing Thomas said about the Complaint at the January 6th hearing was: "I want to EMPHASIZE that we are not challenging the regulations themselves, we all know that those regulations have repeatedly been held valid. What we are challenging here is the manner in which, under color of these regulations, certain officers abused their legal authroity and supervision."]

"Plaintiffs assert little more than that Park Police officers

have attempted to enforce the regulations governing demonstrators in

Lafayette Park." Def's Memo, pg. 1.

The pure fact that a regulation may be valid does not mean that plaintiff must have violated it. As self-evident in the written word, plaintiffs only claim defendants acted "under color of various CFR and D.C. regulations," "without probable cause" (e.g., Complaint, pages 1, 3, 4, 5), for the purpose of "subjecting plaintiffs to unnecessary abuse, under color of regulations." Id. at 9.

"Why does the rule require the attorney to certify that he has read

the papers? The purpose plainly is not to penalize a lawyer for

failing to read it but to eliminate ignorance as an excuse. 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).

Counsel's theory -- that the complaint should be dismissed on the implied grounds that plaintiffs could have been violating "regulations governing demonstrators" -- might be seen as an insult to everyone's intelligence for five reasons.

First, plaintiffs are not defendants in this case.
Second, there is nothing on the record of this case to suggest any plaintiff violated any regulation since 1987. [2]
Third, it is preposterous to suggest that facts, which

[2 Any prior proceedings have no legitimate bearing on anything we're talking about here: "If, for instance, a judge presiding over a retrial should state, based upon facts adduced and opinions formed during the original cause, an intent to ensure that one side or the other shall prevail, there can be little doubt that he or she must recuse. Cf. Rugenstein v. Ottenheimer 78 Ore. 371, 372, 152 P. 215, 218." Liteky, et. al. v. United States, 92-6921 (Decided March 7, 1994), 54 Crl 2182, concurring opinion at 2187.]
2

didn't occur until 1994, can somehow be determined by a string of cases, the most recent of which dates to only 1989. See, cases cited, Def's Memo, pg. 2.
Fourth, whether or not defendants did "little more than ... attempt() to enforce the regulations" is a factual matter which needs to be determined at trial. It is difficult to imagine why counsel posed this unsubstantiated theory [3] in a Motion to Dismiss, except maybe to delay, derail or confuse the issues at bar.
Fifth:
- "The signature of an attorney constitutes a certificate by him that the pleading,motion, or other paper ... is well grounded in fact and is warranted by existinglaw or a good faith argument for the extension, modification, or reversal ofexisting law, and that it is not interposed for any improper purpose, such as to or harass to cause unnecessary delay or needless increase in the cost of litigation....If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiation, shall impose upon the person who signed it an appropriate sanction...." Westmoreland, at 1173, emphasis in original.

As discussed below, defendants' Motion apparently misrepresents the complaint as a challenge to valid regulations, adds a few mischaracterizations of plaintiffs' claims, and glues it all together with arguments that are not well-grounded in fact. Therefore, the Court should conduct a hearing to determine

[3 Counsel doesn't even bother to bolster this theory with a single declaration or other shred of documentary evidence. Since defendants' pleadings are bereft of anything approximating a "fact," In the absence of any facts from defendants, according to the rules, this Court has no option but to "accept plaintiffs' allegations as true." Reuber v. United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984)]

whether the Motion was interposed for any improper purpose.

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