Memorandum (Continued)

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The parties filed cross-motions for Summary Judgment. Record at 78 and 92.

All of appellees' immunity claims, and every attempt to refute appellants' key factual allegations -- signs were "within ... statutory bans," and appellants' (unrequired) permit allowed the display of "2 flags and 2 signs" -- continued to rely completely on arguments contained nowhere but in Mr. Myers' after-the-fact letter. Based upon counsel's insistent use of arguments grounded on the Myers' letter, and otherwise not well grounded in fact.

Appellees just continued to argue:

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"Review of plaintiffs' motion reveals that its essential thrust is a challenge to the letters written by Richard Robbins [Record at 62] ... and Randolph Myers." Record at 102, pgs 1-2, 3.

Since the Robbins' letter drew its authority entirely from the Myers' letter -- which the Court (Record at 88, pg. 2) had correctly stated it would not consider in its deliberation of this case -- appellees were merely insisting,
"The Court should defer to the Department of the Interior's interpretation of its regulation as articulated by its counsel (Myers/Robbins)." Record at 102, pg. 4.

Appellants filed still another motion for Sanctions. Record at 95.

Finally, to the total exclusion of any fact-finding process, the court denied "without prejudice" the Motions for Sanctions, and, implicitly deferring to the opinions in the Myers/Robbins letter, granted appellees' Motion for Summary Judgment. Record at 113.

Of course, since the letter did not exist at the time of the alleged incidents, it could not have stated a "well-established" policy. Plainly it was an error for the district court to accept the representations of a document which it should have ignored. [32]


Crawford-El noted the factors behind the rationale of "qualified immunity,"
"the conventional costs of litigation, the diversion of the officials' time, deterrence of able persons from even accepting public office, and the chilling of officials' readiness to exercise discretion in the public good."

[32 Appellants suggest the district court failed to consider that "government agencies by their very nature (may be) driven to overregulate public forums to the detriment of First Amendment rights, that facial viewpoint-neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression, and that in this case in particular there was evidence readily available that should have impelled the Court to subject the Government's restrictive policy to something more than minimal scrutiny." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 316 (parentheses substituting).]

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Crawford-El., slip op., J. Williams, pg. 16. [33]

If anything, the Robbins/Myers letter is irrefutable evidence appellees' "qualified immunity" claims could not possibly have relied on what Robbins/Myers "believed" about the public good, because the letter didn't exist until well after O'Neill and Keness had exercised their discretion.
"The trial court properly excluded expert testimony which was proffered to prove the (well-established) state of the law and to support their claim of absence of willfulness. The expert's testimony had little probative value on the issue of defendants' states of mind at the time they acted because these was no evidence that they had relied on his opinion at the time they acted. United States v. Daily 756 F.2d 1076, 1083-84; cert denied, 106 S. Ct. 574. (1985)." Moore's Rules of Evidence Pamphlet, pg. 94 (1990) (parentheses substituting for "confusion on the").

Because it relied only on the Robbins/Myers ex post facto letter as "evidence" of "well-established" policy, the district court erred in granting appellees' immunity claims..


One of the concerns most vexing to Judge Silberman is the difficulty of distinguishing between permissible and impermissible hard feelings.
"How would we really distinguish between the defendant's hard feelings toward the plaintiff because he is a self-evident pest as opposed to the more grandly phrased 'because of his exercise of his First Amendment rights'?" Crawford-El, J. Silberman, pg. 15.

[33 Among the profusion of spirited opinions, Judge Silberman lamented the "fundamental - and troublesome - judicial policymaking involved in creating the causes of action that have given us the problem." Crawford-El, concurring, pg. 1.

Viewing "judicial activism" from another perspective, Chief Judge Edwards (joined by Judges Wald, Randolph, Rogers and Tatel) laments:
"Without any directive from Congress or mandate from the Supreme Court, my colleagues run roughshod over the Federal Rules of Civil Procedure and invent new evidentiary standards that would make it all but certain that an entire category of constitutional tort claims against government officials 'whether or not meritorious' would never be able to survive a defendant's assertion of qualified immunity." Slip op, J. Edwards, pg. 1.]


In Crawford-El the Court cautiously agreed that it would adopt a requirement that to escape summary judgment a plaintiff must offer "clear and convincing evidence on the state-of-mind issue." Id., J. Williams, pg. 3. [34]

While there may still be some question as to exactly what claims the en banc court intended to remand, [35] in this instance -- where contact between appellants and appellees was limited strictly to appellants' demonstration activities, unlike Crawford-El, there was no suggestion that appellants were a danger to themselves or others. Thus, even if appellees' hard feelings were motivated by an opinion of appellants as "self- evident pests, appellees' job was to protect, not stifle appellants' constitutionally-protected activity. Compare, Record at 65, pages 4-7.
"A police officer has the duty not to ratify and effectuate a heckler's veto nor may he join a moiling mob intent on suppressing ideas, Instead, he must take reasonable action to protect from violence persons exercising their Constitutional rights." (Glasson v. City of Louisville, 518 F2d 906 (6th Dist.1975), cert denied.

[34 The controlling opinion cautioned:
"Judge Silberman suggests, based upon the low success-rate of Bivens and 1983 actions, that there is not much out there to deter. He does not consider, however, that the low-success rate is, in part, a result of the qualified immunity doctrine and other legal rules. We cannot know how much additional unconstitutional mischief the rules proposed by Judges Silberman and Williams would elicit, but that seems reason enough to proceed with more caution than either of them displays." Crawford-El, slip op., J. Ginsberg, pg. 4. ]

[35 The en banc opinion stated, "that withholding Crawford-El's property in retaliation for exercise of his First Amendment speech rights would indeed be a violation of clearly established law" (Crawford-El, J. Williams, pg. 23), but, "if he adds no evidence, the district court should grant any future motion for summary judgment by Britton on the federal claims against her." Id. pg. 3.
Upon remanding, however, the Crawford-El panel instructed that "Crawford-El's claims against Britton herself do not survive the heightened evidentiary burden imposed by the en banc court..." Crawford-El, Panel's Judgment, August 28, 1996, pg. 2]

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Even assuming, arguendo, that appellants were perceived in certain circles as expressive pests, appellees' suppressive abuse would not have been reasonable.

"A more invidious classification than that between persons who support government officials and their policies and those who are critical of them is difficult to imagine. (Defendant)s drew a line that was not merely invidious but one that also struck at the very heart of the protection afforded all persons by the First and Fourteenth Amendments." Glasson, supra, at 908.

Thus, J. Silberman need not fret that appellees in this case might be penalized for having exercised good hard feelings.


Although the five separate opinions generated by Crawford-El concurred in remanding for further consideration by the district court, the en banc decision reveals broad diversity of perspective on the appropriate balance between government efficiency and individual rights. [36]
"In Harlow v. Fitzgerald (457 U.S. 800), the Court ... held that the plaintiff can prevail only by showing not just that there was a violation, but that defendant's acts violated 'clearly established statutory or constitutional rights of which a reasonable person would have known'." Crawford-El, J. Williams, pg. 5.

[36 On one hand, J. Silberman surmised:
"Since direct evidence of an unconstitutional motive for an ostensible legal act is virtually never available (I do not recall ever seeing such a case since Martin was decided), the Martin heightened pleading requirement effectively kept Bivens unconstitutional motive cases from going to discovery and trial in our circuit for 10 years. That result, no matter how reached, is not only desirable, it is implicitly contemplated ... by Harlow v. Fitzgerald, 457 U.S. 800 (1982)." Crawford-El, slip op, J. Silberman concurring, pgs. 8 & 9.

On the other extreme, Chief Judge Edwards, et. al. opined:
"Citizens of the United States who legitimately use the legal system to render representatives of their government accountable for unconstitutional action should not find the courthouse door in our nation's capital slammed shut. I hope that will not be the consequence of today's decision." Id, slip op., Edwards, concurring, pg. 15.]


In a light most favorable to appellants, their demonstration activities were "well- established" when the complaint was filed. The Record contains no articulated government interest. Supra, pgs. 1 - 5.
"(F)irst Amendment rights ... certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence...." Brown v. Louisiana, 383 U.S. 131; also, Watson v. Memphis, 373 U.S. 526 (1962); Shuttlesworth v. Birmingham, 382 U.S. 87, 90-91 (1965); Wright v. Georgia, 373 U.S. 284, 291-293; Johnson v. Virginia, 373 U.S. 61; Taylor v. Louisiana, 378 U.S. 154; Warner v. Louisiana, 368 U.S. 157, 174 (1961).

For years before, and ever since, appellees Keness and O'Neill became U.S. Park Police officers, appellants' vigils were constantly at the same location in Lafayette Park. Signs and flags are indistinguishable from First Amendment rights. United States v. Eichman 58 LW 4745 (1990); Spence v. Washington, 418 US 411 (1969).
"Plainly, the alleged coercion of the Plaintiffs not to display their flags in the case at bar involves such protected nonspeech conduct. (Cites omitted). Second, the plaintiffs have claimed with sufficient specificity that the Officers acted unreasonably in relation to that clearly established right..." Record at 72, pg. 19.

On the other hand, it is beyond question that the Robbins/Myers letter didn't come into existence until well after the Complaint in this matter was filed, but -- except for those contained in appellants' Declarations -- the Record contains not one single word relating to appellants' signs and flags or compliance thereof with Park Service regulations except the Myers' letter and counsel's arguments.

Here, it appears, the district court applied a standard for qualified immunity that relied on the "principle that government officials are presumed to act in good faith." However, it seems as if this principle was unanimously rejected by the Crawford-El Court. Slip op., J. Edwards, ftn. 9, compare, ftn. 32, supra.



In this case there was no admissible evidence submitted to support counsel's argument that appellees were just "doing little more than" enforcing regulations. More compellingly, there is NO EVIDENCE that appellants were arrested or cited for violating any regulations "governing demonstrations."

As discussed above, assuming that appellants had actually been arrested, or even cited, the only pretense that the officers' pre-November, 1994 enforcement theory may have been "reasonable" would be contained in the after-the-fact opinions expressed nowhere but in Mr. Myers/Robbins' January 20, 1995 letter. Record at 22, pg. 4. Because Mr. Myers' letter hardly qualifies as "well-established law" (ftn. 23, supra), a jury would likely conclude that appellees O'Neill and Keness should not have been harassing and intimidating appellants.


It is well-settled that "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury ... the government as an entity is responsible." Crawford-El, Panel Judgment, August 28, 1996, pg. 2, citing Monell v. New York City Dept. of Social Services, 430 US 658, 694. According to appellants,
"(r)especting plaintiffs' signs and flags, an integral part of plaintiffs' expressive vigil, the actions of Officers O'Neill and Keness amount to 'making up the law as they go along.' With respect to the similarly-situated Marcelino Corneil, plaintiffs assert that Officer X acted as executioner after Mr. Corneil unfortunately rebelled against Officer O'Neill's edict." Record at 65, pg. 17.

A jury might easily decide the "little more" which counsel admits appellees were doing (Record at 13, pg. 1) amounted to "violating the Constitution." The reasoning for


remand of policy claims in Crawford-El is equally applicable to the instant matter.

"As Mr. Justice Harlan, writing for the Court, said in Adickes v. H.S. Kress & Co., 398 US 144, 167-168 (197): 'Congress included customs and usage because of the persistent and widespread discriminatory practices of ... officials.... Although not authorized by written law, such practices of ... officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law.'" Monell, supra, at 690, 691; see also, supra, ftn. 23.

Well-established law in this Circuit has perceived the possibility of lower court insensitivity to expressive park values and incoherent enforcement policies.
"We are concerned with the possibility that this drawn out litigation has, to this point, reflected an insensitivity ... to the consideration that there are 'park values' in the use of these parks for speech and demonstrations. It is our contemplation that the Park Service will evolve coherent policies reflecting the concerns identified in this case, and thereby obviate the continual involvement of the courts in what should be essentially matters of park administration and local police responsibility." A Quaker Action Group v. Morton (Quaker Action VI), [37] 516 F.2d 717, ftn. 40 (D.D.C. 1979). See also, CCNV, supra, at 315, dissent.

Rather than looking at appellants in the hackneyed sense of "perennial demonstrators," it was an error for the district court not to have taken a closer look at appellees' perennial pattern of policy abuse, to determine whether "the government as an entity is responsible." Crawford-El, Panel Judgment, pg. 2.


Appellants brought certain fact-specific allegations; appellees merely 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. The

[37 So named because it was the fourth appeal decided by this Circuit Court in the litigation styled A Quaker Action Group v. Morton. The three previous appeals are reported as A Quaker Action Group v. Morton, 148 U.S.App.D.C. 346, 460 F.2d 854 (1971) (Quaker Action III); A Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 429 F.2d 185 (1970) (Quaker Action II); A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111 (1969) (Quaker Action I). A summary of the procedural history may be found in 516 F.2d at 721-23.]


Court apparently prejudged appellants as "campers." Record at 106, pgs 25, 26.

"If defendants had really wanted to play fair ... they could have had Officer O'Neill come to Court on January 6, 1995, and accuse plaintiffs of making the whole thing up, or whatever. Instead, they just said, 'The Government is not prepared.'" Record at 49, pg. 9. [38]

To dispel any unfavorable illusion that appelllants' "(conclusory) allegations .. were addressed in Judge June Green's court" (Record at 106, pg. 27), appellants submitted decisions from Thomas v. United States, 696 F.Supp. 702 ("Thomas I "). Record at 8, Exhibits 2 & 3. In reply, appellees relied on Anderson v. Bradford, 1990 WL 161916. Record at 10, Exhibit 1. Like Bradford, appellants have been involved in other litigation. Unlike Bradford, none of appellants previous litigation raised the issue of frivolity. In Thomas I the court neither rejected Magistrate's fact-findings (Record at 8, Exhibit 3), which found the issues "mandated a trial," nor, obviously, addressed the fact-specific circumstances raised here. Thomas I only held:
"Until plaintiffs have applied for ... a permit and the Department of Interior or its delegate have acted on such a permit, plaintiffs' constitutional challenge to the Lafayette Park regulations on vagueness grounds must fail. Accordingly, an accompanying Order dismisses both complaints, without prejudice." Thomas I, at 712, 713, compare, supra. ftn. 23.

Moreover, even in a criminal case, where these appellants were defendants --

[38 To be accurate a fact-finding process must be more inquisitive.
"When the executive or administrative process abridges constitutional rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court rather than the agency that must balance the competing interests. The question in this case is not whether some support for (defendants' ex post facto regulatory enforcement rationalization) may be adduced, by reference to evidence in the record and a claim of [official immunity, or] reasonable inferences or concerns, but is whether the regulations at issue here are unnecessarily restrictive for the purpose they are designed to serve." Quaker Action Group v. Morton, 516 F.2d 717, 722, see also, id. ftn. 2, citing United States v. O'Brien, 391 U.S. 367, 377; Shelton v. Tucker, 364 U.S. 479; United States v. Robel, 389 U.S. 258, 268.]


actually cited for, but acquitted of, violating the camping ban -- there is evidence that other courts noted significant questions which persist in evading review.

"The court's ruling today does not mean that the government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed." J. Green, Record at 65, Exhibit 3, pg. 1026.
In another circumstance where Park Police agents were just "doing little more than enforcing regulations," unexamined factual issues left important questions unanswered.
"THE COURT: Let me ask you this ... hasn't it been one of those things there he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."
"THE GOVERNMENT: He plays games.
"THE COURT: Well, I don't know who is playing a game really." Record at 65, Exhibit 2 (United States v. Thomas, USDC Cr. 83-056), pgs. 6, 7.
Appellants offered other examples of less than half-done fact finding. See, e.g., Thomas v. United States, 557 A.2d 1296, 1297 (1989), Record at 49, pg. 4, also, Record at 59, Exhibits 1 & 2. It was an error for the district court not to presume appellants' toes were on the line, and that appellees were stomping on appellants' toes without probable cause. Thus, the district court was in error to rely on the legal decisions in Record 117, Attachment 1 as if these abstractions negated the factual reality at bar.


An unchecked bureaucracy was neither the aim of the Administrative Procedure Act, nor the intent behind framing a judicial branch. Supra, ftn 23. Unless the judicial branch draws the line somewhere, there will cease to be any demarcation point to


"set() us apart from totalitarian regimes." Terminiello, supra, also, Record at 39, pg. 2.

The best deterrant to judicial activism, appellants humbly suggest, is a court which trains its attention on factual reality.
"The rule that appellant was convicted of violating is a substantive regulation, subject to the APA's procedural requirements but adopted in their absence. Before a person is threatened with jail for such a violation, the government must ensure that the rule itself is not in violation of the law." Picciotto, supra, 349,

Again, echos of an established pattern of policy abuse are heard.
"(T)he post hoc policy rationalization belatedly supplied by the Director cannot be thought to provide the necessary binding standards where the regulation has none. Cf. Shuttlesworth v. Birmingham, supra, 394 U.S. at 153." United States v. Abney, 534 F2d 948, 986 (1976). Compare, supra, ftn. 23.

By abrogating its fact-finding responsibility in deference to counsel's bald representations, the district court abandoned judicial scrutiny in favor of administrative whim. Appellants do not believe this oversight is the correct approach.


Based on the foregoing, and supported by the record as a whole, it is apparent that the merits of the instant appeal are not so clear as to make summary affirmance appropriate. Indeedm in light of the Court's decision in Crawford-El, summary reversal might not be inappropriate.

Respectfully submitted this 23rd day of October, 1996.

Concepcion Picciotto, Appellant, Pro Se
Post Office Box 4931
Washington, D.C. 20008

William Thomas, Appellant, Pro Se
P.O. Box 27217
Washington, D.C. 20038
(202) 462-0757

Ellen Thomas, Appellant, Pro Se
P.O. Box 27217
Washington, D.C. 20038
(202) 462-0757