Memorandum in Support of Appellants' Motion to Govern Further Proceedings

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I. INTRODUCTION

In the circumstances presented, within an eight-day period, one district court judge entered two final orders -- respecting one location (Lafayette Park), and one factual predicate (a sign) -- resulting in diametrically opposed opinions: the sign is first "prohibited" (August 23rd), then "not prohibited" (August 31st). This legal paradox is rooted in the doctrine of "qualified immunity," and the district court's factual confusion.

In Crawford-El v. Britton, D.C.USApp 94-7203, the Court explained,
"Our inquiry is framed by the competing goals described by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 816-18 (1982) -- vindicating constitutional rights but at the same time protecting officials from exposure to discovery and trial that would unduly chill their readiness to exercise discretion in the public interest.... (W)e believe that unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant." Crawford-El, slip op, Judge Williams, pgs. 2-3 (August 27, 1996).

After wrestling with the proper standard for qualified immunity, a diverse en banc opinion concurred in vacating the dismissal of Crawford-El's First Amendment claim and remanded the case to the district court. Crawford, id., pg. 30. Applying the principles decided in that case, this case should also be remanded.

II. FACTUAL BACKGROUND

Since June, 1981 appellants William Thomas, Concepcion Picciotto and Ellen Thomas have, jointly and/or separately, [1] maintained "a twenty-four-hour-a-day vigil on the sidewalk bordering Lafayette Park, across the street from the White House."
[1 William and Ellen Thomas maintain the Peace Park Vigil. Concepcion Picciotto and William Thomas maintain the White House Vigil. Record at 16, pg. 1.]
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United States v. Picciotto, 875 F.2d 345,347 (DC 1989).[2]

It is uncontested that appellants' vigil activities are religiously motivated to publicly communicate on various moral issues. As part of their expression of religious views, appellants had, for years, used signs and flags with the effect, intent and propensity of drawing a crowd or onlookers. Infra pg. 38.

Appellees made no pretense that appellants' vigils, signs, and/or flags imperiled any legitimate government interest, or resulted in any damage or harmful effects.

III. DISCUSSION OF FURTHER PROCEEDING IN LIGHT OF CRAWFORD-EL

Appellants pause briefly to draw the Court's attention to two significant distinctions which set this matter apart from Crawford-El.

A. DISTINCTIONS BETWEEN CRAWFORD-EL AND THE CASE AT BAR

A significant difference between Crawford-El and this case is that the efficient operation of a legitimate social institution raises no valid concern. [3] Here the threat allegedly strikes at the heart of free society.

"The right to speak freely and to promote diversity of ideas and programs is


[2 36 CFR 7.96(g)(1) provides: "(T)he term demonstration' includes ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views ... which has the effect, intent or propensity to draw a crowd or onlookers." ]

[3 The government may not restrict the manner of demonstrations unless it fulfills certain strict requirements set forth by the Supreme Court:
"a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377 (1968). ]
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... one of the chief distinctions that sets us apart from totalitarian regimes."
Terminiello v. Chicago, 337 U.S. 4 (1945); see also, Texas v. Johnson, 109 S. Ct. 2533 (1989); Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US 131 (1961); Tinker v. Des Moines, 393 U.S. 503; Cox v. Louisiana, 379 U.S. 536, 551 (1965); Carey v. Brown, 447 U.S. 455, (1980). [4]

1. NO LEGITIMATE GOVERNMENT INTEREST

In this case appellees articulated no clear Government interest. [5] Assuming that "legal matters" are "important," Crawford-El suggests that Society's problems stem in large part from its inability to devise policies that actually balance government efficiency with individual rights. Crawford-El, slip op., J. Williams, pg. 28, 29.

The panel's remand "on the question of whether a ... policy or custom caused a constitutional violation" (C.J. Edwards, J. Wald, J. Randolph, August 28, 1996, Memo, pg. 2) will encourage both well-balanced policies and a fact-finding system which actually functions to maintain civil liberty. Record at 49, Thomas Declaration, pgs. 2, 4.

The policies implicated in the instant matter deserve the same scrutiny.
[4 "From time immemorial" parks have been recognized as "public forums." Hague v. C.I.O, 307 U.S. 496 (1939). In this circuit Lafayette Park has repeatedly been recognized as a forum "vital to a healthy and robust public discourse." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984); United States v. Grace, 461 U.S. 177. Record at 16, pgs. 9, 10.]

[5 Unlike Crawford-El v. Britton, the instant matter does not require the Court to balance the care and feeding of individuals who present a threat to the physical well-being of persons or property, against the nature of any possible "hard feelings" (id., slip op., J. Silberman, pg. 15, see, infra, pgs. 32, 33) entertained by officials vested by society with custodial responsibility for controlling potentially violent individuals.
This Court has repeatedly agreed that "troublemaker" is "an apt moniker" for Crawford-El. At the same time, to paraphrase Judge Edwards (slip op., pg. 15), should other "(c)itizens of the United States who legitimately use the legal system to render representatives of their government accountable for unconstitutional action ... find the courthouse door in our nation's capital slammed shut (as a) consequence of today's decision," the Court can't blame Crawford-El.]
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2. THE STATUS QUO

Unlike Crawford-El the Complaint here sought emergency relief expressly to "maintain the status quo" vis-a-vis plaintiffs' constitutionally-protected messages and physical safety, situations which have produced "no substantial ill effects to the Government since at least as early as June 3, 1981." Record at 16, pg. 9.
"This (TRO) application involves ... alleged suppression of expression by all defendants, and a fatal shooting involving some defendants....

"These issues - use of deadly, organized force and the suppression of free expression in a 'quintessential public forum' -- are of broad concern to the citizens of every democratic nation on Earth. These are matters essential to the well-being of any rational society, as such they require a fair public hearing, and the provisions of Rule 65 require that the hearing be prompt....." Record at 6, also, Record at 16 COUNTS 1-8.

This case sought to prevent removal of appellants' sign and flags from Lafayette Park -- the precise injury which, without hearing any fact, the lower court facilitated.

"Civil law contains ... a requirement that the party seeking to mobilize the state to ALTER the status quo prove his case by clear and convincing evidence."
Crawford-El, J. Williams, pg. 16. EMPHASIS added.

The signs and flags at issue in this case represented the last actual, peaceable, uncontested status which prevailed for years [6] before appellee O'Neill's actions instigated) the pending controversy. [7] .


[6 "(L)et us make some findings of fact. We are in an area where a vigil protected by the constitution and by a governmental permit has been taking place [since June 3, 1981]. It is a vigil that was described in the testimony of the government witnesses as, quote, the Thomas Vigil, end quote." Record at 65, Exhibit 3, Transcript, United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 84-255, pgs. 1014, 1015 (J. J.H. Green), September 25, 1985.]

[7 "'Status quo' to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. Edgewater Constr. Co. v. Percy Wilson Corp., 2 Ill. 864, 357 N.E.2d 1307, 1314." Black's Law Dictionary.]
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There is evidence that appellants' activity addresses issues of broad public interest. Record at 65, Declaration of Ellen Thomas, Exhibits appended thereto. There is evidence that appellants' message is likely to be understood by visitors from around the world. Record at 49, Exhibits 1, 2 and 3. Appellants' activity in Lafayette Park is enough of a First Amendment landmark to merit repeated inclusion in tour books. Exhibit 1, hereto, (Berlitz Travel Guide); Record at 49, Exhibit 2-C.

Appellants protested appellees' attempts to alter the status quo while evading the requirement of producing clear and convincing evidence:
"In the absence of any evidentiary hearing, within the pages of plaintiffs' own Bivens complaint, and solely on the authority of Randolph Myers' letter, defendants are attempting to transform 'civil plaintiffs' into 'criminal defendants'." Record at 65, pg. 2. See also, infra, ftn. 23.

As discussed below (infra, pgs. 12-15 and 28-31), the Record contains no valid evidence to support a finding that "such signs violate Park Service regulations." Thus, appellees have successfully mobilized the district court to alter the status quo" only by evading the requirement that they prove their "case by clear and convincing evidence."

a. STATUS QUO ANTE BELLUM

Not surprisingly, the district court's hear no facts, see no facts, listen only to government counsel fact-finding process resulted in starkly conflicting judicial opinions.

According to Mr. Robbins' interpretation of the district court's disposition of the Complaint, what had been "the right of every American" (Exhibit 1, hereto), [8] became


[8 Testimony and evidence would show appellants' "continuous presence" is so well-established that the photograph in the Berlitz Travel Guide has appeared in successive reprints (1988, 1991). Testimony and evidence would also show the photograph was posed, the flag being waved was normally affixed to the sign, and a second flag, not pictured was attached to the other sign.]
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"criminal activity", subject to "enforcement action by police."

Crucial to the question of whether or not the sign at issue was or was not "prohibited," is a document referred to throughout the district court proceedings as "Randolph Myers' letter of January 20, 1995." Exhibit 2, hereto; Record at 22, Exhibit 1.

"Our letter," appellants had long insisted, is actually Myers / Robbins / O'Neill / Keness' letter, [9] and, pursuant to the provisions of Fed. R. Evid. 102, 104(a)(b), 403, and 901(a), was inadmissible as evidence and should have been stricken from the Record. Record at 46.

Particularly given the court's ruling that it would "not consider (Mr. Myers') letter ... until it is submitted in a form which has evidentiary value" (Record at 88, pg. 2), it was an error for the Court to make the factual determinations which it did.

As a direct result of the proceedings below, appellee Robbins now contends that the former status quo was altered, "(o)n August 23, 1995, (when) the United States District Court confirmed that such signs VIOLATE Park Service regulations in Thomas v. United States, No. 94-2747." Exhibit 3, hereto, EMPHASIS added.

Actually, in a different case -- which the district court erroneously declined to consolidate (Record at 105, see also, Notice of Issues on Appeal, # 6) -- J. Richey noted appellants' "ample alternative channels of communication," by finding:
"The plaintiff maintains his presence in Lafayette Park. He is NOT PROHIBITED from displaying [precisely the same] sign ... there." (Thomas v. United States, et. al., USDC 95-1018; USApp No. 95-5438; Order, August 31, 1995, pg. 18, EMPHASIS added [brackets added for factual clarification], Exhibit 4, hereto.


[9 Mr. Robbins was finally forthright enough to refer to the heretofore "Myers letter" as "our letter" (Exhibit 3, hereto; Record at 121, Exhibit 1), thus providing clear and convincing evidence that appellants were correct.]
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Only the district court's remarkably illogical inconsistency, and most favorable predisposition to "appellees' letter," now permits the very same sign, at the exact same location, under precisely the same regulations, to be simultaneously "prohibited" and "not prohibited." Such an extraordinary contradiction -- which exposes appellants to police "enforcement action" -- is obviously incompatible with the rule of law, and should be rectified by this Court.

B. THE CLAIMS

Essentially, unlike Crawford-El, this appeal challenges the district court's disposition of the factual matters underlying the case. Infra, The Proceedings Below.

1. THREAT AND INTIMIDATION UNDER COLOR OF "CAMPING"

On December 20, 1994, shortly after Officer O'Neill - under color of the CFR camping regulation - had been kicking and jabbing Marcelino Corneil with a nightstick, USPP "Officer "X" shot Marcelino to death on the White House sidewalk.

Mr. Corneilís gratuitous death seemed particularly disturbing, as it appeared to symbolize the logical extension of a pattern and practice of standardless, arbitrary, abusive police enforcement of petty regulatory provisions. [10]

Thus, on December 22, 1994 appellants filed this suit, alleging that the shooting


[10 Appellants tried to dispel any misperception that they might be challenging the constitutionality, rather than the manner of enforcement, of the camping regulation. Appellants contend that Mr. Corneil was not camping, but even if he had been, appellants claimed, the actions of the officers were still more than inappropriate.
"Officer O'Neill had only three legitimate options (warning him, issuing a citation, or arresting Marcelino), and () 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." Record at 16, para. 20; Record at 12 (Proposed Order to Dismiss as Frivolous), page 8; Record at 49, pg. 13.]
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of Mr. Corneil illustrated the results of a pattern and practice of harassment aimed at demonstrators or other people deemed by police to be "undesirable."

Appellants claimed the camping regulation was used as a pretext to harass them, and the incident where Mr. Corneil was killed illustrates the need for responsible supervision. Notwithstanding appellants' pro se pleadings, there should have been no misunderstanding on this point. Appellant William Thomas, who was prepared to present witnesses (Record at 106, January 6, 1995, Transcript, pg. 14) stated:
"I don't think there's too much that I need to show here, except that there's a pattern and practice of arbitrary abuse of the regulations. And I want to make it perfectly clear, I'm not challenging the constitutionality of the regulations. What I'm challenging here is the way that the regulations are enforced and the supervisory oversight of enforcement of regulations. That's what I'm challenging. I'm not challenging the constitutionality." Record at 106, pg. 13.

The Complaint made absolutely no reference to any camping arrests involving appellants, yet the court proceeded as if it had. [11] Even after appellants declared in open court that there was no indication any appellant had violated the camping ban, the court continued to view the claims in a light unreasonably favorable to appellees.
"Plaintiffs have not specified that they were engaged in expressive activities at the time of the Officers' alleged actions. Indeed, it is notable that while other portions of the Plaintiff's Complaint are very fact specific, the Plaintiffs do not


[11 For example, the district court mistakenly assumed an allegation of a "camping" arrest where none existed.
"(T)his is not the first occasion when these Plaintiffs have made sweeping and conclusory allegations that their First Amendment rights have been trammeled. [Compare, Record at 65, pgs. 7-12, see also, Record at 59, Exhibits 1 & 2] Here again, no factual allegations are asserted which support this claim.... They also assert that several months ago one camper was improperly arrested.
"MR. THOMAS: I object.
"THE COURT: It's in the paper, sir.
"MR. THOMAS: No camping involved there at all."
Record 106, pgs 25, 26. For another example, see, Record at 72, pgs. 16-17 [brackets added].]
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describe with any specificity what activities they were engaged in when the officers cited them with violating the camping provisions in 36 CFR 7.96(i)."
Record at 72, pgs. 16-17

This finding is plainly erroneous for at least five reasons.

First, at no point were appellants "cited" for "violating the camping regulation." Supra, ftns. 10 & 11. Second, appellants were "fact specific" regarding threat of arrest under color of the camping regulation. [12] Third, appellants repeatedly stressed that their whole point is that they have a right to continue the vigils [13] which they have maintained since 1981 complete with the signs and flags at issue. Record at 111, pgs. 5, 6, see, Record at 115, pgs. 5-7, also, Record at 65, pgs. 4-7. Fourth, appellants' sworn declarations make it clear that appellants' activity was a religiously motivated expressive activity, not the criminal act of "camping." E.g., Record at 65, 99, 111, 115. Fifth, Counsel did not challenge these factual allegations, but just argued,
"plaintiffs' attempt to maintain a 'continuous presence' at Lafayette Park, which the officers .. construed as 'camping' in violation of regulations." Record at 109, pg. 3.

Appellants don't contend their religious beliefs entitle them to violate the camping regulation, rather they contend they were not violating the camping regulation.

Rather than conduct a hearing of facts, the court reached back to 1987 (Record at


[12 Appellees allegedly practiced harassment under color of the camping regulation, when plaintiffs were definitely not camping. E.g., Record at 16, Ellen Thomas Declaration, pages 1 & 2, Picciotto Declaration, ∂ 6, Wade Varner Declaration, also, Record at 25, Picciotto Declaration; Record at 59, Second Varner Declaration; David Jackson Declaration.]

[13 On the Record appellees' most recently stated position regarding "vigils" is from March 5, 1985, when appellee Robbins explicitly claimed that the Park Service had no desire to preclude "continuous vigils" from Lafayette Park. Federal Register, Vol. 51 No. 43, pg. 7559, 2nd col., March 5, 1986. For Mr. Robbins' name see, id. 7556, 2nd col. See also, Record 65, pg. 16. See also, supra, ftns. 1 & 2.]
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117, Exhibit 1, 2), to fill the factual void with legal argument, and resolved the Complaint in appellees' favor, thus perpetuating a situation capable of repetition yet evading review. Record at 115, pg. 12, compare, Record at 65, pgs. 7-12. [14]

If appellants' uncontested declarations were not enough for appellants to prevail on summary judgment (infra, ftn. 27), whether they were "camping" was properly a question for the jury. It was a serious error for the court to decide the issues in the instant civil matter on the basis of a ten-year-old-criminal case which had no relation to the factual allegations at bar. Infra, p. 25, Res Judicata, Collateral Estoppel, or Plain Error.


[14 "(C)ourts must be especially careful in scrutinizing (time, place, and manner) restrictions on first amendment expression that the government seeks to justify on eye- pleasing grounds.... Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others to be more moderate and decorous - and, in consequence, less effective - in conveying their message." White House Vigil for the ERA v. Clark, 746 F.2d 1518, 1551; City Council v. Taxpayers for Vincent, 103 S. Ct. 2118, majority opinion, 2139, 2141.]



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