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Appellants' Reply to Appellee's Renewed Motion for Summary Affirmance
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
No.95-5340September Term, 1996
(C.A. No. 94-2747)
Concepcion Picciotto, and
United States of America, et al., Appellees
BEFORE: Wald, Williams, and Rogers, Circuit Judges
APPELLANTS' REPLY TO APPELLEES'
RENEWED MOTION FOR SUMMARY AFFIRMANCE
On October 23, 1996 appellees filed a Renewed Motion for Summary
Affirmance ("Renewed Motion"). The issues raised in appellees' Renewed Motion
are fully briefed in appellants' forty page Motion to Govern Further Proceedings.
("Further Proceedings"). Appellants now file this brief Reply in an effort to assist the
Court  in pinpointing the parties' respective positions on the key issues which,
appellants submit, have fouled the process of this litigation.
In Crawford-El v. Britton, 93 F.3d 813, at least a considerable portion of the
Crawford Court was audibly concerned with the grave consequences of slamming the
courthouse door in the face of "(c)itizens of the United States who legitimately use the
[1 On November 4, 1996 appellants and appellees filed motions to extend the time for them to file their replies to the respective motions to govern further proceedings]
[2 For the Court's cross-referencing convenience a hypertext version of this Reply, linked to the entire record of this case, is available at:
legal system to render representatives of their government accountable for
unconstitutional action." Id. Judge Edwards, slip op., pg. 15.
In sum, appellants suggest this case should be remanded because,
In the fact finding vacuum left by the district courts disposition of this matter,
appellees offer only legal arguments in place of the facts which, appellants respectfully
contend, the district court erred in failing to find.
In urging summary affirmance, appellees apparently rely solely on the argument
that, "(a)ppellants failed to demonstrate a violation of a clearly established right."
Renewed Motion, pgs. 2, 3, 4, 5, 6, 7 and 8.
Nonetheless, the en banc decision in Crawford-El held 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." Id, J. Williams, pg. 23.
Appellees' argument dodges the fact that the "clearly established right" asserted
by the Complaint was the "continuous vigil" which appellants "have maintained in
Lafayette Park since June 3, 1981." Further Proceedings, Memo, Factual Background, and pgs 2-7.
For want of a factual Record, in the case at bar, the lower court could not find
"The district court's disposition of this case champions the premise that
individuals can apply for and be granted a permit, allowing a specific act; be
threatened and intimidated by the police for doing that specific act; file a lawsuit
to redress those enforcement excesses; be advised by defense counsel during
litigation that the exercise of the permitted action was, indeed, a regulatory
violation, and have the complaint dismissed under the doctrine of 'official
immunity.' This administrative approach to reality makes a laughingstock of the
permit process, and promotes the abuse of police power under the pretext of
agency policy." Further Proceedings, Motion, pgs. 1, 2.
whether or not appellants "vigil" was "constitutionally protected." But, the Record
does show that after conducting a lengthy trial, another district court specifically held
that appellants activities were indeed, "a vigil protected by the constitution." Further
Proceedings, Memo, ftn. 6. On the threshold, this question should have been
resolved in appellants' favor. Reuber v. United States, 750 F.2d 1039 (DC Cir 1984).
Any challenge to the nature of appellants' vigil would qualify as a fact finding question.
Appellants argue that,
Obviously appellees can argue that this "aptly summarized" the Complaint.
Equally obvious is the fact that this characterization fails to consider appellants' claims
of a false arrest (Further Proceedings, pgs. 10-12), and appellees' baseless threats of
arrest under the camping regulation. Id., pgs. 7-10.
Appellants assert it was an error for the district court to have disembodied the
Complaint, and dispose of it piecemeal, rather than to let a jury decide whether the
various individual acts were unrelated, or whether they constituted a pattern and
practice intended to intimidate or punish appellants for the continuation of their vigils.
"In its August 23, 1995 Memorandum Opinion, the District Court aptly
summarized appellants' Amended Complaint as alleging 'that the officers
harassed the [Appellants] under color of the Park Service regulations, and
improperly threatened to arrest [them] if they failed to remove signs, flags, and
a plastic cooler from their demonstration site in Lafayette Park.' Memorandum
Opinion at 3." Renewed Motion, pg. 3.
Next, appellees argue,
"(R)elying on undisputed facts concerning appellants' flag display, the
District Court properly determined that appellants had failed to state claims of
arbitrary enforcement..." Appellees' Renewed Motion, pg. 4.
What appellees purport to be "facts" are contained nowhere but in the post hoc
letter of Randy Myers. The district court ruled that it would not consider Mr. Myers'
letter (Record at 88, pg. 2), a ruling on which the lower court apparently reneged.
Because Mr. Myers' letter formed the basis of three separate Motions for Sanctions
(Further Proceedings, pgs. 28-30), each of which was denied "without prejudice,"
appellees' representations that these are "facts," much less "undisputed," seems
nothing short of audacious.
Particularly since Mr. Myers' letter claims to have been written "in response to
(appellant Thomas) letter to Richard Robbins, a jury should decide whether or not Mr.
Myers' letter was concocted after the fact in a concerted effort to make it appear as if
the officers were legitimately executing a "well established policy," or whether the
officers' actions where directed against appellants "well established vigils."
Appellees also claim,
Again, on the Record appellees come no closer to "evidence" in support of this
supposition than Mr. Myers' disputed, belated letter. Further Proceeding, pgs. 36-40.
Finally, appellees pronounce,
"The District Court found that the Park Police officers were not deprived of
their authority to enforce the sign-size regulations by the fact that appellant
Picciotto possessed a permit, since the permit did not authorize the arrangement
of the signs or the flags in a manner that otherwise violated the sign regulations.
Memorandum Opinion at 10." Appellees' Renewed Motion, pg. 5.
On the topic of "self-serving and conclusory assertions," appellees didn't bother
to file even one factually based affidavit, nor is there anything on the Record, to support
counsel's oft repeated argument that, "plaintiffs assert little more than that Park Police
officers have attempted to enforce the regulations governing demonstrators in Lafayette
Park." Record at 22, pg. 2, see also, Record at 106 pg. 19.
Appellants rely on the axiom that the factual allegations, related documents,
and evidence must be presumed true and liberally construed in a light most favorable
to the non-moving party, and "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; Hughes v. Rowe, 449 U.S. 5, 10 ; Scheuer v. Rhodes, 416 U.S.
232, 236; Conley v. Gibson, 355 U.S. 41, 45. Appellants tried to convince the district
court not to take appellees' word for everything,
"Reviewing the extensive filings by appellants in the District Court,
including various affidavits by plaintiffs and other park demonstrators, nothing
presented in the record of this action demonstrates clearly or convincingly that
any of appellees was animated by an unconstitutional motive. Rather, the
evidence supports an attempt by appellees properly to enforce the Park Service
regulations. Nothing in the record of this action, besides appellants' self-serving
and conclusory assertions, even suggests that another motive existed."
Renewed Motion, pg. 7.
Notwithstanding the fact that the district court found it necessary to conduct
three hearings in the case below, it is clear that the court heard no testimony and
appellees submitted no affidavits to contest the facts set forth in appellants pleadings
and affidavits. Therefore, the court had no basis to determine that the police officers
were not acting against appellants because, to paraphrase appellee O'Neill, "(they)
don't like (appellants') signs." Record at 16, Picciotto Declaration.
"I could argue with what the Government said, but I'm not going to do
that. I have witnesses here who will illustrate that (the) representations are
false. And 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." Record at 106, pgs. 20, 21.
An attorney's arguments are not "evidence." There is nothing to support
counsel's assertion that appellees were doing "little more than enforcing the
regulations." Thus, the district court erred in honoring the bald arguments of
appellees' counsel, rather than the allegations and affidavits submitted by appellants.
This case should be summarily remanded for a fact finding process to
determine if the "little more" which appellees admit they were doing amounted to
abusing their official authority to chill the exercise of appellants' constitutional rights.
Respectfully submitted this 13th day of November, 1996,
1424 12th Street, N.W.
Washington, D.C. 20005
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing motion has been
mailed, postage prepaid this 14th day of November 1996, to:
KIMBERLY N. TARVER
Assistant United States Attorney
Judiciary Center Building
555 4th Street, 10th Floor
Washington, D.C. 20001
1424 12th Street, N.W.
Washington, D.C. 20005
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