Appellant's Opposition to Motion for Summary Affirmance



September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants


United States of America, et al., Appellees


Appellant respectfully opposes appellees' Motion for Summary Affirmance ("MSA") of the August 23, 1995 District Court Order, which granted a motion to dismiss or for summary judgment in appellees' favor. The merits of this appeal concern the district court's disposition of the factual matters underlying the case. Under governing law a court 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," and 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. Adickes v. Kress Co., 398 U.S. 144 (1970). Thus, the district court's resolution of the factual matters in this case is not "so clear as to make summary affirmance proper." Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987)



Most relevant to this appeal is the fact that the Record of this case contains not one piece of paper from appellees that would qualify as evidence under the Rules of Civil Procedure. Although the Record includes numerous Declarations, permits and documents in support of appellant's representations, there is nothing, beyond the U.S. Attorney's arguments and the good will of the "fact-finder," to support appellees' motions for dismissal or summary judgment.

Since June, 1981 appellant, together with Concepcion Picciotto and Ellen Thomas, has "engaged in twenty-four-hour-a-day vigil on the sidewalk bordering Lafayette Park, across the street from the White House." United States v. Picciotto, 875 F.2d 343,347 (DC 1989). [1] It is uncontested that appellant's activities in the Park are religiously motivated, for the purpose of communicating on various peace and social justice issues. [2]

On December 20, 1994 Marcelino Corneil was shot to death on the White House sidewalk by U.S. Park Police "Officer "X." Particularly disturbed because Mr. Corneilís gratuitous death seemed the logical extension of a pattern and practice of standardless, arbitrary abuse of police regulatory enforcement, and symbolized the ultimate abuse of police power, on December 22, 1994 appellant, along with

[1 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 hte effect, intent or propensity to draw a crowd or onlookers."]
[2 Appellees make no pretense that appellant's vigil, sign, and/or flags threatened any legitimate government interest, or resulted in any damage or harmful effects.]


Concepcion Picciotto and Ellen Thomas, filed a complaint in the U.S. District Court, alleging, inter alia, that immediately before the shooting Officer O'Neill had been kicking Corneil and jabbing him with a nightstick. [3]

The Complaint alleged that the shooting of Marcelino Corneil illustrated the results of a pattern and practice of harassment aimed at demonstrators or other people deemed by police to be "undesirable." It asked the Court to issue a temporary restraining order (TRO) to prevent police from assaulting people, or from interfering with freedom of expression in Lafayette Park under the pretext of enforcing regulations.

Beginning in February, 1994 Officer O'Neill began harassing appellant under color of various CFR and D.C. regulations. On March 23, 1994, as the result of a conversation which appellant was having with Esyededeea Aesfyza, , Officer O'Neill arrested appellant under color of the D.C. Disorderly Conduct regulation. Amended Complaint. ∂∂ 2, 3.

Officer O'Neill had previously expressed predisposition to Mr. Aesfyza's illegal activities as opposed to appellant's constitutionally protected activities. Record at 16, Thomas Declaration, ∂∂ 4-6; Picciotto Declaration, ∂∂ 4, 5.

There is no evidence that appellant was disorderly, that the conversation concerned anything other than ideological disputes, or that the incident would have

[3 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, Concepcion Picciotto Declaration, ∂6, Wade Varner Declarations), and that appellees' practice of harassment included physical assult. also, Record at 59, e.g., Wade VArner Declaration, and David Jackson Declaration.]


occurred if not for Officer O'Neill's antagonistic participation. Charges were dropped. Record at 16, Thomas Declaration, ∂ 7, see also, Record at 65 pgs. 19-21.

On several occasions in November, 1994, appellees O'Neill and Keness threatened to arrest appellant on the pretext that two signs were "structures." Record at 16, Thomas Declaration, ∂∂ 6-10.

On November 10, 1994 appellant wrote a letter to appellee Robbins, explaining that the signs in question 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..." Record at 16, Thomas' Declaration, Exhibit 1.

Separatelt, as part of the demonstration maintained with Concepcion Picciotto, appellant regularly displayed the two flags and two signs, without incident, since at least October, 1990. Record at 72, pg. 20. [4]

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. Nonetheless, on repeated occasions after appellant's letter to appellee Robbins, appellee O'Neill and apellee Keness harassed and threatened appellant and Concepcion Picciotto with arrest unless he removed the flags.

On the basis of these allegations, the Complaint claimed that, without a discernible legitimate Government interest, various police officers,

"animated by political or religious animosity, (had) entered into a scheme of

[4 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; Record at 16, Declaration of Thomas, Exhibit 3.]


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.
Appellant claimed being subjected to repeated threats and intimidation, "low intensity, high impact psychological warfare which ... amounts to personal torture."
"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, () actually deprived plaintiffs of rights and privileges granted them under the Constitution." Record at 16, COUNT 8.
Reasoning that these repeated incidents involving the same police officers targeting demonstrators, or other "undesirable," under color of various regulations, would reasonably constitute a "pattern and practice," appellant applied for temporary relief, claiming,
"Officer O'neill 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.

The other allegations of this complaint, while not as graphic, are nonetheless extremely important. "The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart from totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); 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 (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

"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 "unique public forum." E.g., ERA v. Clark, 746 F.2d 1518, 1555 (1984); United States v. Sunrise, 707 f. Supp. 295 (1988)." Record at 16, pgs. 9, 10.


Moreover, the Complaint alleged,
"(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."


Dismissal of this action raises the question, "Was appellant denied meaningful access to the fact-finding system?" The first indication that the court was not particularly anxious to hear any facts in this case came when the hearing on the TRO, filed December 22, 1994, was set for January 6, 1995. Amazed at the Incredible delay, appellant moved the lower court to recuse itself, reasoning in part,
"This 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" (White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, 177) -- 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.

Denying the Motion to Recuse, the court reasoned,

"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.
However, when the long awaited hearing finally arrived, 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.

Despite a generous fifteen-day delay to allow preparation, 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.

It is axiomatic that an attorney's arguments are not facts. Yet, on the Record, appellees are represented by nothing except the repetitive arguments of their counsel.
"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 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 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's representations -- well, provided you rule in my favor, I don't care." Record 106, pgs. 20, 21.
The Record indicates that the Court may have seriously misconstrued the factual allegations, or erroneously relied on opinion gained outside the courtroom, e.g.,
"(T)his is not the first occasion when these Plaintiffs have made sweeping and conclusory allegations that their First Amendment rights have been trammeled. [5] Here again, no factual allegations are asserted which support this claim.... They also assert that several months ago one camper [6] was improperly arrested.

[5 In fact, the Record shows, not all legal authorities have seen these allegations as "sweeping and conclusory." Record at 6, Exhibit 3, pgs. 9-15; Record at 65, pgs. 7- 12, see also, Thomas et. al. v. Reagan, et. al, 113 S.Ct. 2397, cert denied, (May 13, 1993), J White, dissenting; in light of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 2397; United States v. Thomas, 557 A.2d 1296; United States v. Picciotto, 875 F.2d 343.]

[6 Appellees contend, "Appellants in this action are three perennial demonstrators in Lafayette Park." MSA, pg 1. Regardless of the fact that appellant may have been convicted of violating park regulations in the past, the fact in this case are unrelated to those earlier cases.

In the court below appellant maintained that, "what" he may or may not be, or the nature of his activities in Lafayette Park are questions involving factual issues bearing on his First and Ninth Amendment claims and should be reserved for a jury. Record at 65, pages 4 - 7.]


"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.
The Record also indicates that the court erred by ruling on the basis of unrelated past cases, e.g.,
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." Record at 106, pg. 27

The Court exhibited understanding of the importance of a fact based resolution,

THE COURT: "(I)n view of the importance of resolving this matter on the merits, the Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, will combine Plaintiffs' claim for a preliminary injunction with its application for a merits determination, and that hearing will be had beginning at 2:00 p.m. on January 12, 1995." Record at 106, pg. 28.
The Court set a hearing on the preliminary injunction for January 12, 1995.

On January 11th, rationalizing, "the Plaintiffs might need additional time to perform discovery," [7] the Court cancelled the January 12th hearing. Record at 11.

On January 11, 1995, appellees filed a factually unsupported motion to dismiss, simply re-arguing that appellees had done, "little more than ... attempt to enforce the regulations governing demonstrators in Lafayette Park." Record 13, pg. 1.

Rather than oppose appellees' Motion to Dismiss, on January 24, 1995, appellant filed a Motion for Rule 11 Sanctions. Record 25.

On February 23, 1995 appellees filed a Response in Opposition to Motion for

[7 Not only was there no factual hearing in this case, but on January 27, 1995 the Court, precluding discovery, granted Defendants' Motion to Stay Discovery.]


Reconsideration of Denial of Plaintiffs' Application for a TRO or Alternatively, to Dismiss the Complaint as Frivolous (Record at 22), [8] in which they attempted to pad their factually deficient Motion to Dismiss with a letter, apparently written on January 20, 1995 by Randolph Myers, purportedly, "in response to (appellant's) letter to (appellee) Robbins, dated November 10, 1995." Record 22, Exhibit 1.

Appellant filed a Motion to Strike the Letter of Randolph Myers. Record at 46. [9] A second Motion for Sanctions was also filed on February 9, 1995. Record at 49. [10]

Appellant filed a Motion to Reschedule the Preliminary Injunction Hearing. Record at 59. Notwithstanding "the importance of resolving this matter on the merits," appellees opposed a hearing, arguing they, "should not be compelled to testify at any hearing that addresses the merits of the plaintiffs' claims." Record at 64, pg. 1.

On April 12th Judge Richey, split the Bivens complaint into separate "claims" (Record at 73), and dismissed all but one. Appellant believes it was an error for the Court to pare the Bivens complaint to a single incident.
"(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).

[8 On February 8, 1995 the Court declined to dismiss for frivolity, claiming, "it does not view the matter as frivolous." Record at 47, pg. 8; compare, Record at 120.]

[9 On July 3, 1995 the Court denied, "without prejudice," appellant's Motion to Strike Mr. Myers' letter from the record, but avowed "the Court shall not consider the letter at any stage inthe proceedings unless and until it is submitted in a form which has evidentiary value."]

[10 On August 23, 1995 the Court denied, "without prejudice," appellant's Motions for Sanctions, "reserving the right of plaintiffs to refile same following exhaustion of any and all appeals." Record at 113.]


Appellant's whole point is that he has a "right" to continue the "vigil" (supra, ftns. 5 & 9) maintained by he and his colleagues since 1981. [11] Failing to recognize plaintiffs vigil as an "expressive activity" (supra, ftn. 1), the Court erred by viewing the allegations in a light most favorable to appellees.
"Plaintiffs have not specified that they were engaged in expressive activities at the time of the Officers' alleged actions (kicking, prodding, banging on signs).[12] Indeed, it is notable that while other portions of the Plaintiff's Complaint are very fact specific, the Plaintiffs do not 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.
Appellant "alleged" that appellee Robbins' had "supervisory responsibility." E.g., Record at 16, Count 6. Appellant feels he has have met the requisite pleading standards. [13]
"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." Record at 72, pgs. 9-10.
Since the allegations must be "taken as true," appellant believes that in dismissing the Complaint against appellee Robbins the Court has misplaced the burden of proof. Assuming appellee Robbins did not bear the alleged responsibility, it

[11 As recently as March 5, 1985 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, 1985, for Mr. Robbins' name see, id. 7556, 2nd col. See also, Record 65, pg. 4. See also, ftn. 1, supra.]

[12 Additionally, although there is no evidence of camping, even it were alleged that someone was camping, when enforcing "camping" regulation police officers may issue citation violations, or arrest people, but, in a light most favorable to appellant, threatening and assaulting people or property are grounds for legal action. ]

[13 In addition to appellant's allegation, the record contains prima facie evidence of appellee Robbins' responsibility. E.g. Record 76, Exhibit 1; Record 62, Exhibit 1.]


was appellees' obligation to refute the allegation, which they failed to do. It was an error for the Court to assume that Mr. Robbins lacked the responsibility which appellant alleged.

Appellant specified his allegations of false arrest for disorderly conduct by appellee O'Neill. Record at 16, Thomas Declaration, ∂∂ 4-7 Because appellees failed to present any factual evidence refuting the accuracy or allegations set out in appellant's uncontested Declaration, relying on nothing more concrete than counsel's arguments, the Court erred by finding,
"The Plaintiff has not provided factually specific allegations that Officer O'Neill acted without probable cause to arrest the Plaintiff (for disorderly conduct) ... nor have the Plaintiffs claimed that Officer O'Neill acted in bad faith." Record at 72, pg. 14.
The Court also erroneously assessed the Complaint in a light most favorable to appellees by concluding,
"The Plaintiffs have not asserted that their sign did not fall within ... statutory bans." Record at 72, pgs. 14-15. [14]
Since the wording of the regulation itself, 36 C.F.R. S 7.96(g)(5)(x)(B)(2), does not prohibit the sign at issue, it is plain that appellees' (defendants') Motion to Dismiss (Record at ) is legal arguments without any tie to the facts at issue. Absolutely nothing in the Record -- except Randolph Myers' hotly contested letter (ftns. 9 & 10,

[14 Here the Court is simply mistaken. Appellant did specify that the signs did comply with statutory limits. E.g., Record at 16, Thomas Declaration, Exhibit 3, Letter to Robbins, November 10, 1994. But even if appellant had failed to specifically stipulate the measurements of the sign, lacking anything more substantial than counsel's arguments to the contrary, to view the Complaint in "a light most favorable" to plaintiff, as the law requires, the Court should have assumed that the sign did conform to the specifications of the regulation.]


supra), suggests that appellant's signs may not have fallen "within the statutory ban." And even that is nothing more than Mr. Myers' personal opinion.

"We believe, that your signs, as presently constructed, fail to conform to the regulations." Record 22, Exhibt 1. [15]
Deeply committed to freedom of thought and expression, appellant vigorously supports Mr. Myers' right to believe and say whatever he likes. Just the same, 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:
"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)." Moored Rules of Evidence Pamphlet, pg. 94 (1990), (parentheses substituting for "confusion on the"), compare, ftns. 9 - 10, supra.
Initially, the Court held the single remaining "claim" should go to trial, because,

"(T)he Plaintiffs have established that a clearly established right is implicated by the Defendants' actions. [16] It is beyond doubt in this Nation's jurisprudence that nonspeech conduct sometimes qualifies as expressive conduct protected by the First Amendment. Tinker v DesMoines 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,

[15 Another perplexing aspect is the fact that, on August 31, 1995, the same Court (J. Richey), ruled, with respect to the same "sign/structure" that, a different regulation "leaves alternative channels of communication open to the (appellant). The (appellant) maintains his presence in Lafayette Park. He is not prohibited from displaying his sign and seat structure there." Thomas v. United States, et. al., USCD 95-1018 9U.S. App no. 95-5440), Order, August 31, 1995, pg. 18.]

[16 Indeed, there is evidence in the record to indicate that appellant's activity in Lafayette Park is a veritable First Amendment Landmanrk, likely to be understood by visitors from around the world. Record at 49, Exhibit 2-C.]