Memorandum (Continued)

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While Crawford-El addressed a single incident, this case questioned a series of incidents spanning several months, and alleged violations of appellants' First, (Fourth), Ninth and Fourteenth Amendments rights, 42 USC Sections 1985(3), and 1986.

Reasoning that these repeated incidents, involving the same police officers, targeting demonstrators under color of various regulations, would reasonably constitute a "pattern and practice," [26] appellant applied for temporary relief, claiming:
"Officer O'Neill's abuse of authority which preceded the shooting of Marcelino Corneil, under the pretext of the minor regulations, is a graphic demonstration of the result of abuse of legal authority, and emphasizes the necessity for this court to protect not only plaintiffs, but the liberty, welfare, and physical well-being of anyone who happens into the abusive path of well-intentioned power gone astray, and of society in general." Record at 16, Count 5..

The Complaint alleged that various police officers,
"animated by political or religious animosity, (had) entered into a scheme of regulatory enforcement designed to chill, disrupt or terminate the exercise of plaintiffs' constitutionally-protected expressive religious activities in the world's premier public forum." Record at 16, pgs. 6-7.

In discussing Harlow's reasoning on qualified immunity J. Silberman (pg 14.) noted that Crawford-El left Halperin v. Kissenger, 807 F.2d 180 a "silent orphan."

[26 Appellants claimed that being subjected to repeated threats and intimidation was tantamount to "low intensity, high impact psychological warfare."
"Repeated threats and intimidation of plaintiffs by Officers O'Neill, Keness and others has subjected plaintiffs to extreme emotional distress, had a chilling effect on plaintiffs' exercise of rights and privileges granted them under the Constitution, and, ( ) deprived plaintiffs of rights and privileges granted them under the Constitution." Record at 16, COUNT 8.]

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Crawford-El relies on both Celotex v. Catrett, 477 U.S. 317, and Anderson v. Liberty Lobby, 477 U.S. 242, which both proceed from Adickes v. Kress, 398 U.S. 144. In the Halperin sense, Adickes would be a second orphan abandoned by Crawford-El

"It also appears to us that, on the basis of the showing before the Court in Adickes, the motion for summary judgment in that case should have been denied.

"'Petitioner argued that although she had no knowledge of an agreement between (defendant) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses. Adickes, at 157.'" Celotex, at 325.

The Myers' letter is clear and convincing evidence of "agreement," albeit ex post facto, between certain appellees concerning police "enforcement action" vis-a-vis appellants expressive activities. As a result of the district court's refusal to examine the factual issues raised in appellants' Motions for Sanctions (infra, pgs. 28 - 31), the precise extent of that agreement is somewhat less than clear. Still, under the circumstances, it is enough to merit further inquiry.

Furthermore, the court was able to perceive a number of alleged incidents which, taken together, is clear and convincing evidence that Officers O'Neill and Keness shared a hostile interest in plaintiffs' expressive, religiously motivated activities.
"The Plaintiffs' suit arises out of allegations that the above named Officers harassed the Plaintiffs 'under color of various CFR and D.C. regulations' ... Amended Complaint, p. 3. First, the Plaintiffs allege that Officer O'Neill falsely arrested Plaintiff William Thomas for disorderly conduct, which deprived the Plaintiff of his First Amendment rights. Second, the Plaintiffs argue that Officers O'Neill and Keness informed Plaintiff William Thomas that a sign the Plaintiff erected in the Park qualified as a 'structure' banned under 36 C.F.R. Sec 7.96(g)(5)(x)(A)(4), and that the Plaintiff was therefore subject to arrest and the sign subject to confiscation unless the Plaintiff removed it. Third, the Plaintiffs argue that Officers O'Neill and Keness pressured Plaintiffs ... to remove two

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flags from the Park 'under color of a CFR regulation.' Amended Complaint, p. 4. The Plaintiffs assert that the Officers pressured the Plaintiffs despite the Plaintiffs' alleged exemption from the applicable CFR regulations and the Plaintiffs' possession of valid permits for the flags. Fourth, the Plaintiffs claim that Officers O'Neill and Keness threatened to charge Plaintiff Concepcion Picciotto with a CFR violation unless she removed a plastic cooler from the Park. Finally, the Plaintiffs allege that Officers O'Neill and Keness often threatened to arrest the Plaintiffs for unlawfully camping in the Park. The Officers also allegedly kicked the Plaintiffs, prodded them with nightsticks, and banged on the Plaintiffs' signs." Court's Memorandum (April 12, 1995), pgs.3-4.

It was an error to dismember the claims, and reassemble the parts as if the Complaint (filed December 22, 1994) challenged the administrative authority of Mr. Myers' permit interpretation (written January 20, 1995). Record at 76, pgs. 3-4.
"(T)he District Court must look to the way the complaint is drawn to ... claim a right to recover under the Constitution and the laws of the United States." Bell v. Hood, 327 U.S. 681 (1945).

The Court reduced plaintiffs' factual allegations of ultimately fatal police misconduct to nothing more than a question of the correctness of the sign / flag configuration, which relied implicitly on the late-coming Myers / Robbins policy statement (Record at 114, ftn. 2), and concluded,
"that the conclusory and factual allegations set forth in the Amended Complaint do not even begin to meet the specificity requirements for such an allegation. Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984)." Record at 114, pg. 12, ftn. 4.

Because the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff (Reuber v. United States, 750 F.2d 1039 (D. C. Cir. 1984)), it was an error for the Court to separately dismiss each of plaintiffs' factual allegations without proceeding as if appellants' "vigil" was constitutionally protected, and that appellees "don't like (appellants') signs. Supra, pg. 12, and ftn. 23

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The proceedings below were a convoluted process, which took the district court from declining to dismiss the Complaint as frivolous (Record at 47, Court's Memorandum, February 8, 1995, pg. 8), to the conclusion that it "cannot certify that the appeal is not frivolous" (Record at 120), all without any basis in fact.

Appellees aptly describe the issues as "straight-forward," the pleadings as "voluminous," and the litigation as "complicated." Motion for Summary Affirmance, pg. 4. Appellants agree the issues are straight-forward, but submit the proceedings were complicated less by appellants' pro se pleadings than by the fact that, lacking any factual basis, appellees' pleadings were far less than "straight-forward."


It is axiomatic that an attorney's arguments are not facts. [27]

Still, despite, appellants' numerous sworn statements, supported factual allegations, and futile pleas for a day in court, the process below proceeded from beginning to end only on the strength of counsel's questionable representations.

[27 Under prevailing law a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" (Hughes v. Rowe, 449 U.S. 5, 10 (1980 ); Scheuer v. Rhodes, 416 U.S. 232, 236 (1979); Conley v. Gibson, 355 U.S. 41, 45 (1957).

On summary judgment, the court must consider the pleadings, related documents, and evidence in a light most favorable to the non-moving party, and is required to "construe the complaint in the light most favorable to the plaintiff and its allegations must be taken as true," any ambiguities or uncertainties concerning the "sufficiency of the claims must be resolved in favor of the plaintiff." Adickes v. Kress Co., 398 U.S. 144 (1970). ]

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The district court's nonchalant fact-finding process is reflected in a fine -- but crucial -- distinction between the parties' representations. It is only the district court's utter failure to ascertain any facts which enables appellees to continue asserting the same baseless defense on appeal:
"Appellants in this action, three perennial demonstrators in Lafayette Park, have brought this action against the United States, the Department of the Interior's National Park Service, the United States Park Police and individual federal employees, alleging ... that certain Park Police officers arbitrarily and 'without probable cause' ENFORCED against them certain regulations governing demonstrators in Lafayette Park." Appellees' Motion for Summary Affirmance, Nov. 13, 1995, pg. 1, EMPHASIS added, compare, Record at 65, pgs. 4-7.

On the contrary, this Court cannot reasonably entertain any conjecture that "regulations governing demonstrators" were "enforced" against appellants. [28] This Complaint sought relief from repeated threats and intimidation under color of "regulations governing demonstrators." Record at 16, COUNTS.

Nothing on the Record, save opposing counsel's factually inaccurate assertions, and the district court's plain fact-finding errors supports an insinuation that any "regulations governing demonstrators" were "enforced" against appellants.


The first indication that the court was not particularly anxious to hear any facts on which to settle the merits of this case came when the hearing on the TRO -- filed

[28 "Regulations governing demonstrators" are codified in the Code of Federal Regulations, appellant William Thomas was arrested under color of the District of Columbia "disorderly conduct" regulation.]

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December 22, 1994 -- was set for January 6, 1995. As the term of a TRO is only ten days and addresses emergency situations, appellants were amazed at this extraordinary delay, and moved the lower court to recuse itself. Record at 6. The court declined,

"in view of the import of the issues raised, the Court found that a short delay (before the TRO hearing would) afford the Government the opportunity to respond (and) was in the interests of justice and consonant with the Court's duty." Record at 8, pg. 2.

Despite the court's generous fifteen-day delay to allow appellees to prepare for the TRO hearing, rather than dispute appellant's factual allegations, the U.S. Attorney merely argued that appellees "have to be able to enforce the regulations. That's all they're doing here." Record 106 (Transcript, January 6, 1995), pg. 19.

Appellant stated he had five eyewitnesses to the events at issue present in the courtroom, and that appellee Robbins, the only government witness he would need, was seated at defense table.
"THE COURT: I see nothing in the rules, Ms. Rider and Mr. Thomas, which requires the taking of any testimony upon the occasion of hearing an application for a temporary restraining order. Can you cite anything to the contrary? .....

"MR. THOMAS: I'll tell you what. I could argue with what the Government (counsel) said, but I'm not going to do that. I have witnesses here who will illustrate that her representations are false. If you hear the testimony, you'll be convinced that representations that the Government (counsel) has made are false. That's the only reason I can suggest that you should take testimony. But if you want to ignore the facts and rule on the Government (counsel)'s representations -- well, provided you rule in my favor, I don't care." Record 106, pgs. 20, 21 parentheses added.


It is unmistakably clear that the declarations in support of the Complaint made factual allegations, while appellees' Opposition was supported by only a copy of the

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decision in Huddle v. Reagan, USDC, civ 88-3130 (J. Green). Record at 14, Exhibit 1.

After refusing to hear testimony, the district court said that it "carefully considered the ... complaint ... the declarations in support and ... the opposition filed today by the United States." Record at 106., pg. 23. Yet, the district court mistakenly rejected appellants' factual declarations in favor of appellees flawed legal argument.
COURT: "Now, the Plaintiffs' ... complaint for declaratory and injunctive relief, which they filed ... on December 22, 1994 ... still has not been heard. These are preliminary findings. But most of the allegations, I must add very quickly, were addressed in Judge June Green's court.

"MR. THOMAS: They were not. They didn't happen until just this month, since November. (Judge Green's) case was decided in 1989. These are all new instances." Id, pg. 27.

To the end appellees relied on the theory that the issues here had been decided in previous cases. Certainly, appellants noted, if the issues had previously been decided, the Complaint should be dismissed under the principles of res judicata or collateral estoppel. Which, of course, couldn't happen. Record at 65, pg. 12.


The Court also paid lip-service to the fact-finding process: [29]
"(I)n view of the importance of resolving this matter on the merits, the Court ... combine(d) Plaintiffs' claim for a preliminary injunction with its application for a merits determination," and set a hearing on the preliminary injunction for January12, 1995 at 2:00 p.m. Record at 106, pg. 28, also, Record at 8.

But, on January 11th, rationalizing, "Plaintiffs might need additional time to perform discovery," the court cancelled the January 12th hearing. Record at 11.

On January 27, 1995 the Court precluded discovery by granting appellees'

[29 For this Court's convenience, appellants have complied a list of the Exhibits filed by both parties below. Exhibit 6, hereto.]

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Motion to Stay Discovery. Record at 28. Appellants then requested that the preliminary injunction hearing -- previously scheduled for January 12th, then cancelled -- be rescheduled. Record at 59.

Considering that appellees argued appellants' "Motion for ... Sanctions or ... Dismissal of the Complaint as Frivolous" (Record at 25; infra pg. 28) was only a ploy by appellants "to avoid a resolution of the merits of their Complaint" (Record at 22, pg. 1), appellees sort of bit themselves in the tail by opposing a rescheduled hearing, with the argument that they "should not be compelled to testify at any hearing that addresses the merits of the plaintiffs' claims." Record at 64, pg. 1.

Appellants detailed factual issues which appellees should be compelled to testify about, and appellees efforts to avoid a resolution of the merits. Record at 65, pg. 3, see also, pgs. 2-39.

With a seemingly cryptic reference to the "hearing on the merits," which had previously been scheduled (Record at 8), and cancelled (Record at 11), the court refused to reschedule, and never held, a Preliminary Injunction Hearing.
The law of evidence presupposes that in judging the claims of the litigants, it is important to discern the true state of affairs underlying the dispute. McCormick on Evidence, 3rd Edition (4th reprint, 1991), page 540. See also Fed. R. Evid. 611 (a); see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 1068, 13 L.Ed.d 923 (1965); Fed. R. Evid. 406 (b), Alford v. United States, 282 U.S. at 692.

Because the district court held a total of three status hearings (Record at 1/6/95 [Transcript at 106], 4/19/95, 8/4/95 [presently untranscribed]), studiously avoiding numerous opportunities to elicit testimony, the court lacked any basis to discern the true state of affairs underlying the dispute. Infra, A Repetitious Pattern and Practice Which Evades Review.

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The issue of sanctions first arose after appellees filed a Motion to Dismiss, arguing, bereft of factual support, that appellees "were doing little more than ... attempt(ing) to enforce the regulations," and that the Complaint should be dismissed under the doctrine of qualified immunity. Record at 13, Memo, pg. 1.


Concerned that dignifying "defendants' Motion with an Opposition might only lend credence to an otherwise incredible document," appellants pointed out that the "little more" appellees admitted doing was allegedly "violating the Constitution," and filed a Motion for Rule 11 Sanctions or Other Disciplinary Action, or alternatively, to Dismiss this Action as Frivolous. Record at 25.

Appellants contend the fact-finding process was completely compromised just three days later (Record at 28) when "the Court denied (sua sponte) the plaintiffs' first motion for sanctions, without even requiring defendants to note the existence of, much less answer any of the points raised in plaintiffs' Motion, the Government apparently feels it is simply not required to answer plaintiffs points." Record at 60, pg. 2.


At the same time appellees opposed appellants' Motion to Dismiss for Frivolity, arguing, "plaintiffs ... seek to avoid a resolution of the merits of their Complaint" (Record at 22, pg. 1), they sought to avoid a resolution of the merits by appending Randolph Myers' letter of January 20, 1995. Id., Exhibit 2.

In pertinent part, the letter opines,
"We BELIEVE, that your signs, as presently constructed, fail to conform to the regulations." Record 22, Exhibit 2 (EMPHASIS added), compare, supra, ftn. 23.

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Appellants vigorously support Mr. Myers' right to believe and say whatever he likes. Yet, no matter how sincerely Mr. Myers believes his opinions are reasonable, that doesn't prove his beliefs are correct, or that a jury would agree with him.

Therefore, pursuant to the provisions of Fed. R. Evid. 102, 104(a)(b), 403, and 901(a), appellants moved to Strike Randolph Myers' letter. Record at 46. Among various issues raised in the Motion to Strike was the assertion that "Mr. Myers' letter has no reason to be in the record of this case, except to provide a post hoc basis for 'heightened pleading' and 'official immunity' claims." Record at 65, pgs. 3; 24-32. [30]

Without ruling on the Motion to Strike, [31] or holding any evidentiary hearing, the district court granted in part, and denied in part, the Motion to Dismiss. Record at 72.

[30 In a second Rule 11 Motion for Sanctions appellants detailed, at length, specifically why sanctions should be imposed because counsel essayed to make the letter part of the Record in the first place. Record at 49, pgs. 12-26.

Appellees filed a single document entitled, in pertinent part, Opposition to Plaintiffs' Motion to Strike and for Sanctions. Record at 55 and 56. With respect to the Motion for Sanctions, appellees just argued that they "had properly raised both the heightened pleading standard and qualified immunity." Id., 14. With respect to the Motion to Strike counsel made certain representations about the origins of the Myers letter, and claimed it was "directly responsive to" appellant Thomas' letter of November 10, 1994. Id., pgs. 13, 14.

Appellants filed a brief Reply to the Opposition to Sanctions, indicating that the problem was not that appellees had raised the heightened pleading standard and qualified immunity, but that counsel had done so with "arguments that are (1) not well grounded in fact, (2)) not warranted by existing law or a good faith argument ... or (3) have been interposed for an improper purpose." Appellants also noted that appellees had ignored the specific factual points raised in the initial Motion, and particularly those concerning the Myers letter. Record at 60. ]

[31 Appellants filed a separate Reply to the Opposition to Strike Randy Myers' Letter, explaining, rather succinctly, why appellees' Opposition offered no substantial response to the issues raised in the initial Motion, and requesting the court to conduct a hearing to resolve certain factual issues raised by counsel's representations concerning generation of the letter. Record at 61]

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After appellants (Record at 76) and appellees (Record at 77) filed for reconsideration, although the court denied the Motion to Strike Mr. Myers' letter, "without prejudice," but promised "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." Record at 88, pg. 2.

It was an error not to strike the letter, because, as appellees so eloquently elaborated:
"(T)he officers' understanding and interpretation of the regulations is consistent with the interpretation by the agency's counsel, who has, by letter, informed plaintiffs that the attachment of the flags to the display in this manner violates the regulation." Record at 78, pg. 8.

Because nothing else in the Record remotely suggests a valid "understanding and interpretation of the regulations," in partially granting appellees' Motion to Dismiss (Record at 72), the court could only have accepted Mr. Myers' opinions, which the court itself later correctly recognized should not be considered. Record at 88, pg. 2.