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),  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. 
A second Motion for Sanctions was also filed on February 9, 1995. Record at 49. 
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.  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.
Appellant "alleged" that appellee Robbins' had "supervisory responsibility."
E.g., Record at 16, Count 6. Appellant feels he has have met the requisite pleading
"Plaintiffs have not specified that they were engaged in expressive activities at
the time of the Officers' alleged actions (kicking, prodding, banging on signs).
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.
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
"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.
[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 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 Court also erroneously assessed the Complaint in a light most favorable to
appellees by concluding,
"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.
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,
"The Plaintiffs have not asserted that their sign did not fall within ... statutory
bans." Record at 72, pgs. 14-15. 
[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.
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:
"We believe, that your signs, as presently constructed, fail to conform to
the regulations." Record 22, Exhibt 1. 
"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.  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.]