Assuming, arguendo, that a permit issued specifically for "2 signs and two
flags," might reasonably be assumed to exclude the "2 signs and two flags," and/or,
that the Park Service cannot issue a permit allowing a display which "exceed(s) the
sign-size regulation," those assumptions cannot be made on the record of this case
13
because, (1) there is evidence on the Record that the Park Service regularly does
issue permits which exceed the sign-size regulations (Record at 115, Declaration in
Support, ¶ 2 and Exhibit 1), and (2) viewed most favorably, Mr. Myers' letter would be
"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
Fad 343, 347 (1989).
The importance for Mr. Myers' letter to appellees' immunity claims is further
reflected by the fact that every submission filed by appellees which addressed the
issues of this case, relies on Mr. Myers' letter. Even after the Court ruled that it would
not consider Mr. Myers' letter, appellees were still forced to reference it,
"(D)efendants have set forth in detail why the officers are, in fact, entitled to
qualified immunity on this claim. [17] In their recent pleadings, defendants have
presented to the Court the language of the regulations which the Department of
the Interior, THROUGH ITS COUNSEL, deems applicable to the activity at
issue..." Record at 109 (Defendants' [appellees'] Opposition to Plaintiffs'
[appellant's] Motion, the Docket Sheet might be unclear on this), pg. 7,
EMPHASIS ADDED.
Simply because nowhere in the Record does the Department of Interior speak
[17 Even if Mr. Myers sincerely believes his opinions are reasonable that doesn't
prove his opinions are correct, or that a jury would agree with him, or believe that an
officer believed he was acting reasonably because of something written several
months after the fact by a third party:
"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"). See also, Motion to Strike, Record at 46.]
14
"through its counsel," or anyone else, except Mr. Myers' letter, and nothing on the
Record except Mr. Myers' letter challenges the key factual allegations that appellant's
signs were "within ... statutory bans," and whether or not a permit might be issued --
or could be denied -- to allow the display of "2 flags and 2 signs." notwithstanding
pretensions to the contrary (supra, ftn. 9) the Record shows that the District Court
must, at least subliminally, have relied on Mr. Myers letter to some extent.
The Record shows appellant filed a Complaint alleging, pursuant to F.R.C.P. 8,
that appellees were maliciously making up the law as they went along; appellees'
counsel repeatedly argued, "No, they aren't;" but offered only Mr. Myers' letter as
evidence of appellees "reasonableness;" appellant insisted the Court should hold a
hearing to determine the facts, but the Court accepted counsel's arguments. After
nearly a year, it is still undisputed that Officer O'Neill assaulted a person, under color
of the camping regulation, and the same person was shortly shot to death by Officer
X, whose name we do not know, because he was dismissed on qualified immunity..
From the date of the belated TRO hearing, we realize that, In applying for a
temporary restraining order, plaintiff bears the familiar burdens set out in Washington
Metropolitan Area Transit Commission v. Holiday Tours. Inc., 559 F.2d 841, 843 (D.C.
Cir. 1977). Turning to the transcript, we see that there is nothing on the record to
contest appellant's factual allegations or sworn Declarations, except the arguments of
appellees' counsel, and appellant's offers to refute those arguments with eyewitness
testimony. Considering that, until challenged at least, the Declarations are "facts," the
allegations of a Complaint must be presumed true, and counsel's arguments are not
"facts," it is hard to understand why appellant failed to meet the requirements for a
15
TRO, or how the Court migh grant a motion to dismiss or for summary judgment..
Appellees' Motion for Summary Affirmance seems to rely on the contention that
"qualified immunity" is unqualified. The merits of this appeal do not challenge the
doctrine of "immunity," rather this appeal questions the manner in which the District
Court has approached the factual merits of this case.
Now, months, and well over 100 documents later, appellees' counsel has added
a great deal of argumentation, but absolutely no factual material to the Record. Of
course, Mr. Myers' letter is arguably "part of the Record," but, appellant has shown in
considerable detail why it should not be part of the Record (e.g., Record 46), and why
Rule 11 sanctions should be imposed because counsel has essayed to make the
letter part of the Record. Record 49, pgs. 12 - 26
Notwithstanding the contention that "it does not view this matter as frivolous,"
and even though the Court "reserv(ed) the right of plaintiffs to refile same following
exhaustion of any and all appeals" (Record at 113), while denying, albeit "without
prejudice," appellant's Motions for Sanctions and to Strike Mr. Myers' letter, it was an
error for the Court to make the factual determinations it did, on the existing Record.
III.
Based on the foregoing, as 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.
Respectfully submitted,
William Thomas, appellant, pro se.
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Opposition to Appellees' Motion
for Summary Affirmance has been mailed, postage prepaid, this 27 day of November
1995, to
Kimberly N. Tarver
Assistant United States Attorney
Judiciary Center Building
555 4th Street N.W., Rm 10-106
Washington, D.C. 20001
William Thomas
Appellant, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757