Talking about "facts" which "are no more than bald assertions or arguments" ("Defts'
10
Reply," pg. 3), the idea that plaintiffs are "contradicting their earlier pleadings" originated
in Defendants' Statement of Facts (May 15, 1995), ¶ 5, with a vague reference to
"Plaintiffs Motion to Reschedule the Preliminary Injunction Hearing, R-65 pgs. 19-21."
Defendants' "reply" does nothing more than repeat defendants' initial unfounded
argument. Having recently scrutinized pgs. 19-21, plaintiffs are still honestly trying to
figure out precisely what defendants are talking about.
ii. ARE DEFENDANTS PLEADINGS INHERENTLY CONTRADICTORY?
Plaintiffs' claim against defendant Robbins is based upon allegations of an
affirmative link between the occurrence of various incidents of police misconduct and
Mr. Robbins' "supervisory responsibility."
As usual, defendants have not engaged any of the facts regarding Mr. Robbins'
supervisory responsibility, but just insist plaintiffs cannot hold Mr. Robbins legally
"responsible" for failing to perform his "official duties." Def's Motion to Dismiss
(January 11, 1995) Memo, pg. 4. Yet, the Court held:
"Plaintiffs have failed to indicate with sufficient specificity to what extent
Defendant Robbins was responsible for supervising the wrongdoers... The
Complaint does not charge that Robbins was responsible for training or
overseeing Officers O'Neill and Keness." (Order, April 12, 1995, p. 9-10.)
The fact that defendants offer Mr. Myers' letter, "in response to (Thomas') letter
to Mr. Robbins," [15] as authoritative evidence that "flags" are "signs," and the "officers
[15 Plaintiffs' claim against defendant Robbins is based squarely upon allegations
of an affirmative link between the occurrence of various incidents of police misconduct
and the adoption of a plan or policy by Park Police, at least tacitly approved, if not
authorized or concocted, by Mr. Robbins. Rizzo v. Goode, 423 U, S. 362 (1976); see
also Popov v. City of Margate, 476 F. Supp. 1237, 1245 (D. N. J. 1979).]
11
were acting reasonably," inherently contradicts defendants' pleadings for dismissal of
charges against Mr. Robbins. The authority claimed by the letter -- which defendants
apparently both deny Mr. Robbins has, or admit he didn't use "quickly enough" (id) --
is the same authority which plaintiffs allege (pursuant to 42 USC 1985(3)) Mr. Robbins
wrongfully abused, or (pursuant to 42 USC 1986) failed to use.
4. DEFENDANTS' HAVE NOT SUBSTANTIALLY CONTESTED PLAINTIFFS'
MOTION FOR RECONSIDERATION OF THE COURTS' APRIL 12, 1995 ORDER
On April 12, 1995, the Court issued an Order dismissing certain claims against
defendants Richard Robbins, Stephen O'Neill, Andrew Keness, and Officer "X."
On April 19, 1995 plaintiffs submitted a Motion for partial reconsideration of the
Courts' Order dismissing the claims in this case relating to the camping and sign size
incidents. [16]
Defendants have not substantially contested plaintiffs' motion for
reconsideration.
Hopefully,, the pleadings in this case, together with this Court's Order of July 3,
1995 might, impel the Court to seriously reconsider the issues raised there. Facts, ¶¶
24-33. [17]
[16 It appears that, with the exceptions of Defendants' Motion to Dismiss or
Alternatively for Summary Judgment, Plaintiffs' Motion for Partial Reconsideration of
the Court's April 12th Order, and plaintiffs instant cross motion, all other pending
motions have been resolved by the Court's July 3rd Order.]
[17 Plaintiffs first learned of the July 3rd Order approximately one hour prior to the
instant moment (i.e., 9:15 p.m., July 6, 1995), which resulted in another unexpected
delay.]
12
SUGGESTION FOR SANCTIONS
Because a sane society depends on an accurate understanding of actual
reality, courts must insure that attorneys keep their feet on the ground.
"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 existing
law or a good faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose, such as to
harass or 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.
Since the U.S. Attorney is constantly before the U.S. courts, making
representations which effect the Lives, liberties, and happiness of every individual
within the legal jurisdiction of the United States, the honorable courts will take great
pains to insure that the U.S. Attorney isn't just trying to confuse truth, reason and
logic. Therefore, as defendants' pleadings in this case, as demonstrated by their
reliance on a letter which has no "evidentiary value," fall short of Rule 11
requirements, plaintiffs suggest sanctions must be imposed.
CONCLUSION
Defendants' Statement of Material Fact to Which There Exists No Genuine
Dispute, disputes Plaintiff's Statement of Facts to Which There Exists No Genuine
Dispute, making it clear that factual disputes remain in this case. Those factual
disputes, however, preclude summary judgment only for defendants.
Anyone with access to a yardstick can determine beyond any shadow of a
doubt that the record in this case is somewhere about 4 and one quarter inches thick.
13
Near the top of that stack lies defendants instant Reply. Supra, ftn. 3.
As evidenced by their Reply to Plaintiffs' Opposition to Defendants' Motion to
Dismiss or Alternatively for Summary Judgment, defendants cannot even think about
summary judgment without implicating Mr. Myers' letter:
"Plaintiffs have failed to meet their burden of demonstrating that a 'clearly
established' right has been violated by the officers' application of the sign-size
regulation to their flag arrangement. (Because), the undisputed arrangement ...
ran afoul of the ... regulation according to the agency's counsel." Defts' Reply,
pg. 2.
With respect to Mr. Myers' letter, it appears that, quite correctly, "the Court shall
not consider the letter at any stage in the proceedings unless and until it is submitted in
a form which has evidentiary value." Order, July 3, 1995, pg. 2.
In light of the legal principles stated in United States v. Picciotto, 875 F2d 343,
349 (1989), and absent the bald assertions and argumentation supplied by Mr. Myers'
letter, the resultant paucity of defendants' remaining documentation, testimony or
evidence, the pleadings, and admissions on file, together with plaintiffs' ample sworn
declarations, show there is no genuine issue as to any material fact that would deny
plaintiffs the judgment they seek as a matter of law. Fed. R. Civ. P. 56(c).
Respectfully submitted this 7th day of July, 1995.
______________________
William Thomas
2817 11th Street N.W.
Washington, D.C. 20005
202-462-0757