Appellants' Reply to Appellee's Renewed Motion for Summary Affirmance

Contents | Docket | Exhibits | Case Intro


(C.A. No. 94-2747)

September Term, 1996

William Thomas,
Concepcion Picciotto, and
Ellen Thomas.


United States of America, et al.,

BEFORE: Wald, Williams, and Rogers, Circuit Judges



On October 23, 1996 appellees filed a Renewed Motion for Summary Affirmance ("Renewed Motion").[1] 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 [2] 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,
"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.

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


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,
"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.

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.


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,
"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.

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,
"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.

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,
"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.

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.


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,
William Thomas
1424 12th Street, N.W.
Washington, D.C. 20005


I HEREBY CERTIFY that a copy of the foregoing motion has been mailed, postage prepaid this 14th day of November 1996, to:
Assistant United States Attorney
Judiciary Center Building
555 4th Street, 10th Floor
Washington, D.C. 20001

William Thomas
1424 12th Street, N.W.
Washington, D.C. 20005

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