Memorandum (Continued)

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2. THE SOLE "ENFORCEMENT ACTION"

In support of their claim, appellants specifically alleged that on March 23, 1994, Officer O'Neill arrested Thomas under color of the D.C. Disorderly Conduct regulation.
"The actions of Officer O'Neill caused the false arrest and lodging of false criminal charges against plaintiff Thomas, in violation of rights guaranteed under the (Fifth) [15] and Fourteenth Amendments, and directly resulted in the disruption of Thomas' expressive activities in the Park." Record at 16, Count Three.


[15 It would not be appropriate to conclude that appellants waived their valid Fourth Amendment claim, as a pro se litigant's pleadings should be held to "less stringent standards than pleadings drafted by attorneys." Haines v. Kerner, 404 U,S. 519, 520 (1972); cf. Ham v. Smith, 653 F.2d 628, 630-31 (D.C. Cir.).]

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Charges were dropped. Record at 16, Thomas Declaration, 4 - 7

A month prior to that arrest, in February, 1994, Officer O'Neill had given a clear and convincing explanation for his alleged feelings toward appellants' and their signs:

"In February, 1993 a man named Esyededeea Aesfyza began putting a sign with a swastika right next to my signs. Mr. Aesfyza would then leave his sign and stand thirty or forty feet away. Many people passing by, mistaking Mr. Aesfyza's swastika sign for one of mine, would give me a hard time about the sign. If I said, 'It's not my sign,' people would say, 'Whose is it? There's no one else around.'

"Even though Officer O'Neill has often threatened me not to go more than three feet from my signs, once when I complained to Officer O'Neill about Mr. Aesfyza's behavior, Officer O'Neill told me, 'This is a free park. You don't like his sign, I don't like your sign'." Record at 16, Picciotto Declaration, 4, 5.

Appellees did not address the February incident. To imbue O'Neill with "probable cause," Government counsel submitted the single document (i.e., Record at 55, Deft's Exhibit 2, Criminal Incident Report) which appellants concede might approximate "evidence," but the accuracy of which is ardently disputed. [16]

Crediting O'Neill's own account, there is evidence that the incident concerned a spirited ideological discussion between appellant Thomas and


[16 Comparing Officer O'Neill's version (Record at 55, Exhibit 2) and Thomas' account (Declaration, December 22, 1994, paras. 4-6) of the alleged incident reduces the incident to the uncontested facts that (1) on March 23, 1994, (2) the arrest took place, (3) it was preceded by conversation between Thomas and Officer O'Neill, (4) "overall the tone of (the conversation) was amiable," (5) the conversation concerned First Amendment expression and (6) an individual named Aesfyza Esyedepeea, who (7) happens to be the same individual Officer O'Neill and Concepcion had been discussing more than a month earlier when Officer O'Neill confided that he didn't like Concepcion's signs, and (8) at some point prior to the arrest Thomas suggested to the effect that Officer O'Neill "climb a flag pole." But that's just part of the story

Appellants disputed Officer O'Neill's version of the story, asserting that "Park Police radio tapes covering 1730 to 1930 hours on March 23, 1994, together with testimony and cross-examination of the parties and 'the other' witnesses to the event, should help to determine more precisely where the truth lies between two disparate versions of an implausible arrest story." Record at 65, pgs. 19-22.]

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Esyededeea Aesfyza. There is no indication Mr. Aesfyza complained that Thomas was disorderly. O'Neill's explanation for the arrest was that, "because of Thomas' antics a group formed." Record at 55, Exhibit 2, emphasis added.

After also considering Thomas' side of the story, a jury might easily conclude Thomas' "tirade against Aesfyza," was "constitutionally protected" and that, except for O'Neill's antagonistic participation, the incident would not have occurred.

Balance in this case called for squaring appellees' "probable cause" / "because of antics a group formed" with appellants' "Constitutionally Protected Expression" / "vigils or religious services ... the communication or expression of views ... with the effect, intent or propensity to draw a crowd or onlookers." Compare, "Demonstration," supra, ftn. 2.

Whether Thomas' "antics" amounted to "disorderly conduct" or "protected expression" involves factual issues bearing on appellants' First and Ninth Amendment claims, which are best reserved for a jury. Yet, with no hearing of fact, erroneously crediting O'Neill's unsworn Case Incident Report in a light most favorable to appellees, the district court conlcuded Thomas' unprosecuted arrest was somehow justified. Record at 72, pg. 14.

3. THE SIGNS

As part of the Peace Park Anti-Nuclear Vigil, appellants William Thomas and Ellen Thomas used two signs -- both of which were consistent with the regulations governing signs. In November, 1994 these precise signs had been in the Park 24 hours a day, every day, without incident or complaint, for months. Record at 16, Exhibit 3.

With respect to the facts, the district court is plainly mistaken in concluding,

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"The Plaintiffs have not asserted that their sign did not fall within ... statutory bans." Record at 72, pgs. 14-15.

Appellants did specify that the signs did comply with statutory limits. [17]

Except for Randolph Myers' after-the-fact letter (infra, pg. 18) -- which the district court agreed not to consider as "evidence" (Record at 88, pg. 2) -- nothing in the Record suggests appellant's signs may have violated any well-established regulation. [18]

On several occasions in November, 1994, appellees O'Neill and Keness threatened to arrest appellant under the pretext that those two signs -- both of which were consistent with the regulations governing signs -- were illegal "structures." Record at 16, Thomas Declaration, 6-10.

The fact that appellees claim that a particular object "is prohibited" (Exhibit 3, hereto), while the court unequivocally holds the same object is "not prohibited" (Exhibit 4, hereto), indicates that the Court erroneously assessed the Complaint in a light most favorable to appellees, and inconsistent with the factual Record.

The explanation for this factual inconsistency is simple: the court credited arguments which it later correctly stated that it would not credit. Record at 88, pg. 2.

Lacking anything more substantial than counsel's arguments to the contrary, the Court should assume appellants' signs did conform to the regulation. Thus, it was an error for the district court to credit arguments which were based solely on the opinions


[17 E.g., Record at 99, Thomas (Third) Declaration); Record at 16, Thomas Declaration, Exhibit 3, Letter to Robbins, November 10, 1994. The wording of the regulation itself (36 CFR 7.96 (g)(5)(E)(viii)), does not prohibit the signs at issue. ]

[18 The color photographs accompanying appellees' Motion for Summary Judgment (Record at 78) depict a factual situation which had existed unchanged for since at least 1985. Compare, Exhibit 1, hereto.]

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stated in appellees' factually untested, hotly contested letter. Infra, ftn. 26. [19]

4. THE FLAGS

As part of the White House Peace Vigil, which appellant William Thomas maintains with Concepcion Picciotto, appellants regularly displayed the two flags and two signs, without incident, for many years. Record at 72, pgs. 19-21.

The only incident involving those signs and flags which resulted in judicial review was resolved in appellants' favor, when Judge Joyce Hens Green ORDERED defendants to return the same two flags after defendants had seized them. Record at 72, pg. 18. [20]

At the time of the incidents at issue a valid Park Service permit specifically allowed "two flags and two signs." Record at 16, Declaration of Thomas, Exhibit 2. [21] Nonetheless, on repeated occasions after appellant's letter to appellee Robbins,


[19 If there were any serious dispute as to the dimensions of the signs, the simple fact-finding expedient of carrying the contested signs into the courtroom and measuring them, would have conclusively settled whether the signs fell "within the statutory ban." It is not clear why the district court refused to employ this simple remedy.]

[20 It is worth noting that this is the one legal opinion which both appellants (Record at 16, Exhibit 2), and appellees (Record at 55, Exhibit 3), submitted to the Record. ]

[21 Convincing evidence of impermissible intent might have been dispelled before the Complaint was filed, but persists unresolved due to the lack of fact-finding below:
"I explained to Officer Keness that I'd been thinking about his behavior for about an hour, and had decided that I didn't think he was crazy. I then explained that, assuming he wasn't crazy, I could only imagine three possible explanations for his actions regarding the flags: (a) he doesn't like Concepcion, (b) he doesn't like what she is saying, or (c) a combination of (a) and (b). After Officer Keness said, 'I'm just doing my job,' I asked, 'Assuming harassing Concepcion about these flags is part of a policeman's job, and there are three Park Police officers stationed on the White House sidewalk twenty-four-hours-a-day, seven-days-a-week, but only a couple of clearly identifiable officers have harassed Concepcion about her flags, wouldn't that mean that most of those police on the sidewalk aren't doing their jobs?" Record at 16, William Thomas' Declaration, 19.]

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appellees O'Neill and Keness harassed and threatened appellants William Thomas and Concepcion Picciotto with arrest unless the flags were removed .

Initially the district court correctly held:
"(T)he Plaintiffs have established that a clearly established right is implicated by the Defendants' actions. It is beyond doubt in this Nation's jurisprudence that nonspeech conduct sometimes qualifies as expressive conduct protected by the First Amendment. Tinker v Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969). Plainly, the alleged coercion of the Plaintiffs not to display their flags in the case at bar involves such protected nonspeech conduct, see Stromberg v. California, 283 U.S. 359, 369-70 (1931); Milwaukee Mobilization for Survival v. Milwaukee City Park Com, 477 F. Supp. 1210, 1218 (E.D. Wis.1979).

"Second, the plaintiffs have claimed with sufficient specificity that the Officers acted unreasonably in relation to that clearly established right by threatening the Plaintiffs with arrest." Record at 72, pg. 19.

Unfortunately, and, once again, on the basis of the representations contained nowhere but in counsel's arguments, which are supported nowhere but in Mr. Myers' letter, the Court erred by reversing its correct decision, to its final conclusion,
"Concepcion Picciotto obtained a permit from the Park Service to conduct a 'White House Anti-Nuclear Vigil' in Lafayette Park. Complaint, Exhibit. 3. In her permit application, Picciotto specified that she would be using, among other things, "2 signs [and] 2 flags." Record at 114, pgs. 2 & 3. [22]

"Plaintiffs argue that their display complied with the Park Service regulations or, alternatively, that they possessed a Park Service permit authorizing their display. Based on the record before the Court, the Court cannot agree. Rather, the Court concludes that summary judgment is appropriate because the Plaintiffs' display did not conform to Park Service manner restrictions, to which the Plaintiffs' permit was subject...." (Id., pg. 7)

"With or without the permit, the Plaintiffs could not exceed the sign-size regulations and the officers acted reasonably in requiring removal of the flags from the Plaintiffs' displays." Id., pg. 10.

There is evidence on the Record that the Park Service regularly issues permits


[22 Below neither appellees nor the court challenged the fact that the permit under discussion (Record at 16, Exhibit 3) did not cover the time period at issue. Probably because appellees well-knew testimony and evidence would show that appellants had also been issued identical permits for the precise period in question, as well as on dozens of other occasions over the years.]

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which exceed the sign-size regulations. Exhibit 5, hereto; Record at 115, Declaration in Support, 2 and Exhibit 1. On that basis a jury could easily conclude that (1) a permit issued specifically for "2 signs and two flags," cannot "reasonably" be assumed to exclude the "2 signs and two flags," and (2) that the Park Service can indeed issue a permit allowing a display which "exceed(s) the sign-size regulation."

If individuals can apply for and be granted a permit which allows them to do a specific act, be harassed, threatened adn intimidated by the police for doing that specific act, the file a lawsuit to complain about those circumstances, be advised by defense counsel during litigation that they had indeed been violating a regulation, and have the court dismiss the complaint for "official immunity;" [23] a person of reasonable intelligence can easily see that the permit "process" offers no protection against unreasonable police enforcement action.

Thus, it was an error for the court to reverse its initial opinion that appellants had stated a claim.

5. THE UNITED STATES, APPELLEE ROBBINS, ET. AL.

Appellees O'Neill and Keness repeatedly threatened to arrest appellants unless appellants would alter their established First Amendment status quo. Exhibit 1, hereto. On November 10, 1994 appellant William Thomas wrote a letter to appellee Robbins (Record at 16, Thomas' Declaration, Exhibit 1), explaining that the signs at issue


[23 Viewed most favorably to appellees, Mr. Myers' letter should be seen as nothing more than a permit limitation, in which case,
"'The limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1971).' United States v. Picciotto, 875 F.2d 345, 347 (1989)." Record at 65, pg. 29.]

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complied with the size and configuration specifications set out in the applicable regulations, and asking for "balance to insure that Officer O'Neill ... doesn't run amok..."

Mr. Robbins took no action, the allegations indicate appellees did run amok, and appellants turned to the court to stem official abuse, alleging:
"(Appellee) Robbins and other defendants in supervisory capacity have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Corneil in particular, in danger by failing to properly oversee a well-armed police force, although they knew, or should have known, of extra-legal conflicts by their subordinates toward demonstrators and others in the Park." Complaint, Count Six, see also, Record at 104, August 2, 1995, pg. 2.

Counsel merely argued appellants had not sufficiently proven Mr. Robbins was a responsible individual (Record at 59), but was finally forced to correctly
"assume that plaintiffs' attachment to their memorandum of a copy of a National Park Service 1982 Operations Division Memorandum [Record 76, Exhibit 1] is intended to suggest a particular supervisory obligation or standard of Mr. Robbins as Assistant Solicitor." Record at 109, pg. 5, see also, supra, ftn 13.

Here appellees' accurate assumption illustrates sufficient notice of appellants' claims to proceed pursuant to the provisions of Fed. R. Civ. P. 8. Yet, under the old, abandoned "heightened pleading standard," the district court held:
"Plaintiffs have failed to indicate with sufficient specificity to what extent Defendant Robbins was responsible for supervising the wrongdoers..." Record at 72, pgs. 9-10, compare, Record at 111, pgs. 11-15. [24]

Because the record contains prima facie evidence of appellee Robbins' responsibility, and an unusually forthcoming link between sign / flags - enforcement /


[24 Since appellees had sufficient notice, the court should have assumed that Mr. Robbins was responsible, but allowed him an opportunity to prove he wasn't.
"(A) law enforcement officer may allege and prove in defense his subjective good faith belief that his conduct was lawful and the objective reasonableness of his belief under the circumstances." Glasson v. Louisville, 518 F.2d 899, 909, cert denied, 423 U.S. 930, citing Butler v. United States, 365 F. Supp. 1035, 1045.]

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supervision (Record at 22, Exhibit 1/Exhibit 2, hereto/Record 62, Exhibit 1), even under the new "clear and convincing" standard articulated in Crawford-El, appellants have met the requisite pleading standard to sustain a claim against Mr. Robbins.

But even assuming, despite Exhibit 3, hereto, that Mr. Robbins was not an individual responsible for directing "enforcement action," this complaint also names the United States and the U.S. Park Police as defendants. Surely there must be some individual responsible for supervising the Park Police somewhere.

a. CONSTITUTIONALLY IMPERMISSIBLE ADMINISTRATIVE ALCHEMY

In a light most favorable to counsel, Mr. Myers' January 20, 1995 letter (Exhibit 2, hereto) did not come into existence until a month after Marcelino Corneil was shot to death, 29 days after the Complaint was filed, and many months after the other alleged incidents had occurred. But, again, counsel's repetitive arguments are supported by nothing more than this factually untested, avidly contested, long belated letter. [25]

The Record shows the district court found no facts, dismissed the complaint, then, citing the dismissal as authority, appellee Robbins (1) explicitly claimed authority to define "conformity" on principles stated nowhere but in the factually untested opinions of


[25 This situation presented a prodigiously prejudicial problem for appellants, who, as plaintiffs, correctly advised the district court:
"'(D)efendant Robbins and other defendants in supervisory capacity (i.e., Mr. Myers, who was not named in the complaint, but should have been) have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Corneil in particular, in danger by failing to properly oversee a well-armed police force, although they knew, or should have known, of extra-legal conflicts by their subordinates toward demonstrators and others in the Park.' Complaint Count, 6.

"It is not entirely inconceivable, that the letter was written in concert with defendant Robbins, who the letter is supposedly written 'on behalf of,' for the joint purpose of attempting to hide shared culpability." Record at 49, ftn. 4 (parenthesis in original)), also, pgs. 12-25.]

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"our letter of January 20, 1995" (Exhibit 3 hereto), (2) purely on that authority, Mr. Robbins vaguely (3) "demands that (appellants) promptly come into conformity with National Park Service regulations," (4) threatening that "(f)ailure to come into compliance will result in appropriate enforcement action by the United States Park Police."

"Where police officers ... acting pursuant to general notice given at (a) meeting at which police chief was present, destroyed (a) protest sign ... police officers were liable for violation of protester's right to free expression and police officers and police chief were liable under civil rights statute prohibiting conspiracies to deny equal protection." Glasson v. City of Louisville, 518 F2d 908, 910. (6th Dist. 1977) cert. denied.

Logically, appellees can't have it both ways; Mr. Robbins can't be officially immune because he's not responsible, while he has the official responsibility for directing "appropriate enforcement action by the United States Park Police."

6. THE NINTH AMENDMENT

Although the right of individuals to harmlessly exercise the fundamental freedoms of thought (religious belief) and expression in a public forum without being subject to physical and psychological torment at the hands of salaried or contract Government agents may not specifically be enumerated in the Constitution, for the sake of civilized society, it must be recognized as a right inherently "retained" by the people. Appellees did not address appellants' Ninth Amendment claims. Record at 111, pgs. 11-12.
"Defendants do not argue that extraordinary circumstances prevented them from knowing that the actions they were alleged to have taken were illegal. They claim instead only that no individual act was illegal, thereby overlooking plaintiffs' focus on the motives with which the defendants acted. Whether defendants acted with an intent to impede plaintiffs' rights of association was a question of fact for the jury." Hobson v Wilson, 737 F.2d 1, 27, f tn. 79.

In Buckley v. Veleo, 424 U.S. 1. the Court discussed "quantity and quality," and "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the

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"quality" of the expressive nature of plaintiffs' "symbolic vigil" depends on the "quantity" of their round-the-clock "symbolic vigil" in the public forum. " Record at 65, pg. 17.