Counsel is correct in stating that "plaintiff's allegations
focus on Lindsey's supervisory responsibility over officers who
did arrest (plaintiff)," (Lindsey's Law at 6); however, various
precedents indicate that plaintiff's allegations are certainly
sufficient to state a claim.
Plaintiff has alleged unconstitutional defects in relation to
several arrests with which defendant Lindsey was involved. There
is documentary support already in the record for at least one of
these allegations (see Wardlaw Affidavit, X Document, p. 99-100;
see also IID, para. ).
"Officer Haynes ... while he spoke with precision, and
exactitude, and painstaking care, had selective memory ... and
unable to remember even testimony that he clearly specifically had
given in the court hours earlier, failed to remember making, on
some occasions, earlier arrests of the defendants, contradicted
representations of the manner in which he inventoried the
property....
"Now, the Court's ruling today does not mean that ... it has
... become unnecessary ... to reach the several most significant
constitutional questions that someday, some way, with perhaps other
defendants, perhaps the same will be addressed.
"To continue with this trial would transform the trial from a
prosecution into a persecution, and accordingly the respective
motions for judgment of acquittal are as to each of the defendants
granted." (Tr. Ex. l42, U.S. District Court Judge Joyce Hans
Green, USA v. Thomas, USDC 84-255, September 25, 1984 transcript at
1025.)
Counsel also assumes the position that "(A) warning --
followed by an arrest and conviction is simply not an actionable
event" (Lindsey's Law at 7). Plaintiff agrees that would usually
be the case, but observes clearly unusual circumstances involved
here.
Plaintiff alleges that the "warning" was actually a threat
intended to intimidate him into abandoning his lawfully protected
behavior, and, when plaintiff refused to be intimidated, defendants
fulfilled their threat. Plaintiff further alleges that defendant
Lindsey went on to illustrate an allegedly profound disrespect for
due process and human dignity by giving obstructive testimony to
convince a court that probable cause existed for the arrest, when
the defendant knew, in fact, none did exist. (See Complaint para.
47(a)(b)(c)).
As the photographs on Complaint pages 50 and 88 illustrate,
there was no need to "disassemble" plaintiff's NPS permitted Mobile
Communications Unit to "transport them away from the White House."
(Lindsey's Law at 7.) Photos in the Administrative Record of the
confiscation of the same mobile speaker's platform on May 9, 1985,
show clearly that it was easily transportable intact. (See
attachment ____.)
26
Plaintiff has alleged malicious abuse of process, on more than
one occasion (e.g. Complaint para 87, 93, 96, see Tr. Ex. 126,
146(e) para (31-32), and 151).
"Common-law courts traditionally have vindicated deprivation
of certain 'absolute' rights.... (T)he law recognizes the
importance to organized society that those rights be scrupulously
observed; but at the same time, it remains true to the principle
that substantial damages should be awarded ... to compensate actual
injury or, in the case of exemplary or punitive damages, to deter
or punish malicious deprivation of rights." (Carey v. Piphus, 435
US 247, 267.)
CONSTITUTIONALITY
ARGUMENT B
"A more invidious classification than that between persons who
support government officials and their policies and those who are
critical of them is difficult to imagine. (Defendant)s drew a line
that was not merely invidious but one that also struck at the very
heart of the protection afforded all persons by the First and
Fourteenth Amendments." (Glasson v. City of Louisville, 518 F2d
910, 908 (1977), USApp 6th Dist. (cert. denied).)
Defendants claim that, primarily, they were impelled to this
alleged regulatory excess by complaints from the public (sixteen or
twenty-five, dependant upon whether one chooses to believe their
representations as made on August 20, 1985, or March 5, 1986).
There are clear indications of the "invidious classification"
spoken of in Glasson (e.g. Tr. Ex. 115(b), there is evidence of
base prejudice (see Ad Rec I.A.16), there are examples of blatant
intolerance (e.g. see MILLER III.A.I.37, III.A.38, see also
MILLER, Tr. Ex. 115(a)).
"(A)lthough the touchstone of the Section 1983 action against
a government body is an allegation that official policy is
responsible for a deprivation of rights protected by the
Constitution, ... governments, like every other Section 1983
'person,' by the very terms of the statute, may be sued for
constitutional deprivations visited pursuant to governmental
'custom' even though such a custom has not received formal approval
through the body's official decision making channels. As Mr.
Justice Harlan, writing for the Court, said in Adickes v. H.S.
Kress & Co., 398 US 144, 167-168 (1970): 'Congress included customs
and usage (in Section 1983) because of the persistent and
widespread discriminatory practices of ... officials.... Although
not authorized by written law, such practices of ... officials
could well be so permanent and well settled as to constitute a
"custom or usage" with the force of law.'" (Monell v. New York
City Dept. of Social Services, 430 US 690, 691.)
27
In light of the numerous arrests of plaintiffs for alleged
violations of CFR regulations, it would certainly seem that the
Park Service would be hard pressed to argue that they were somehow
reluctant to enforce their existing regulations to address the
purported "real and substantial problems that existed in Lafayette
Park" concerning trash or storage of property or "aesthetic
interests" in general.
Tacked onto these "real and substantial problems," the Park
Service has also made passing reference to the (one) incident (in
four years) when a person was slightly injured by a sign. Any
possible liability for that incident rests with the National Park
Service and/or the Park Police. (See Amended Complaint para. 18.)
The Park Service also expended many photographs, some
duplicative, of paint on the sidewalks in and around Lafayette
Park. Plaintiffs submit that this paint damage falls into two
substantial categories: (1) considerable amount of paint on the
old concrete sidewalk that formerly surrounded Lafayette Park, and
since has been replaced by a brick sidewalk, and (2) some small
drippings of paint on the inner brick areas. Plaintiffs'
representations with regard to the paint is supported by the
deposition testimony of National Park Service technician Frank
Duncan. Also plaintiffs also represent, and this representation is
supported by deposition testimony of Officer David Haynes, that the
by far largest, most substantial "paint damage" occurred as a
direct and proximate result of actions taken by U.S. Park Police
officer David Haynes. What Mr. Duncan described in testimony and
his written reports, the "important" "line of blue drippings,"
plaintiffs would represent, did not occur as a result of their
negligence, but rather occurred when an individual who was opposed
to the content of their message snatched a can of paint and ran off
through the park spilling some. Notwithstanding Mr. Duncan's
representations, plaintiffs believe that testimony and evidence
that this "line of drippings" was not really "important," and, in
reality, caused no substantial damage that was not covered by
existing regulation. Additionally, plaintiff challenges the
government to produce any photographs that show, as Mr. Duncan
suggested, "paint being put on the sidewalk."
In any event, even a thousand times as much paint as the
defendants represent to be on the pavement of the park, would not
justify a regulation which bans signs and speaker's platforms in
the park.
Finally, defendants have appended their representations of
"real, substantial problems" with the allegation that large signs
have caused damage to the turf in Lafayette Park. Here the record
will show that the signs of the plaintiffs in this action have
always been on the pavement of the park. The two exceptions where
signs have been on the grass and have caused some damage to the
turf were in the case of a sign owned by Mr. Hale, which was left
standing, although often unattended, from spring 1985 until April
4, 1986, and two signs owned by Casimer Urban, Junior, which were
never unattended, during the spring of 1985, and which were removed
by the National Park Service under existing regulation on May ___,
1985 (see Ad.Rec. __________).
28
Defendants make the obvious representation that Taxpayers for
Vincent support their regulatory proposal. As shown above, even
the majority opinion in Taxpayers is not supportive of their
position. Furthermore, it would appear that the dissent in
Taxpayers condemns their position beyond any question.
"For example, in evaluating the ordinance before us in
this case, the city might be pursuing either of two objectives,
motivated by two very different judgments. One objective might be
the elimination of 'visual clutter,' attributable in whole or in
part to signs posted on public property. The aesthetic judgment
underlying this objective would be that the clutter created by
these signs offends the community's desire for an orderly, visually
pleasing environment. A second objective might simply be the
elimination of the messages typically carried by the signs. In
that case the aesthetic judgment would be that the signs' messages
are themselves displeasing. The first objective is lawful, of
course, but the second is not. The city might easily mask the
second objective by asserting the first and declaring that signs
constitute visual clutter. In short, we must avoid unquestioned
acceptance of the city's bare declaration of an aesthetic objective
lest we fail in our duty to prevent unlawful trespasses upon First
Amendment protection." (Taxpayers for Vincent Dissent Opinion, p.
2139, emphasis added.)
"No one doubts the importance of a general government interest
in aesthetics, but in order to justify a restriction of speech, the
particular objective behind the restriction must be substantial.
e.g. United States v. Grace, 103 S.Ct. 1702, 1709 (1983); Perry
Education Association v. Perry Local Educators Association, 103
S.Ct. 948, 955 (1983); United States v. O'Brien, 391 US at 377.
Therefore, in order to uphold a restriction of speech imposed to
further an aesthetic objective, a court must ascertain the
substantiality of the specific objective pursued. Although courts
ordinarily defer to the government's assertion that its objective
is substantial, that assertion is not immune from critical
examination. See, e.g. Schad v. Mt. Ephraim, 452 US at 72-73
(1981). This is particularly true where aesthetic objectives
underly the restrictions. But in such cases independent judicial
assessment of the substantiality of the government's interest is
difficult. Because aesthetic judgments are entirely subjective,
the government may too easily overstate the substantiality of its
goals. Accordingly, unless courts carefully scrutinize
aesthetics-based restrictions of speech, they risk standing idly by
while important media of communication are foreclosed for the sake
of insubstantial governmental objectives." (Taxpayers Dissent
Opinion at p. 2139.)
Certainly in the instant case, which entered the system fully
ten months prior to the initial publication of these regulations,
and which originated from the allegation that defendants had been
engaged in a wrongful conspiracy to color under regulation what
they knew or should have known to be plaintiff's lawfully protected
exercise of constitutional rights, the regulation in question here
cannot be divorced from the allegations which gave rise to this
lawsuit in the first instance.
29
NECESSITY FOR RELIEF
"Faced with the "problem" of critical signs in Lafayette Park,
various defendants had various contacts with the media in which
they attempted to influence the public with regard to their
intended schemes. Around the same time that these contacts were
being made, defendant regulation writers cast about their minds for
some pretext by which to justify regulations the intent of which,
on its face, defendants knew would be unjustifable. These poor
regulation writers overworked minds, over the course of the years,
had been egding closer and closer to exposing the true motive of
thier actions, as evidenced by the pretexts offered in
justification of their handiwork:
1) "impacts the area
cannot sustain:" (36 CFR 50.27);
2) "presidential security:" (fabricating an incident to
justify 36 CFR 50.19(e)(9)(10), see Tr. B. para 91, 101, 102) ;
and
3) "'16' {or 'twenty-five'} written complaints from the
public:" (36 CFR 50.19(e)(11)(12)." (Amended Complaint, para 147.
Plaintiff lodged that allegation on knowledge available to him
before he had been provided with a copy of the Administrative
Record, or was actually aware of Mr. Berliner's letter (Supra at
17). That letter, and the circumstances surrounding it, illustrate,
perhaps as seldom before, appreciation for the advice of Justice
Douglas:
"The vitality of civil and political institutions in our
society depends on free discussion. As Chief Justice Hughes wrote
in DeJonge v Oregon, 299 US 365, it is only through free debate and
free exchange of ideas that government remains responsive to the
will of the people and peaceful change is effected. The right to
speak freely and to promote diversity of ideas and programs is
therefore one of the chief distinctions that sets us apart from
totalitarian regimes...Accordingly a function of free speech under
our system of government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs
people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea. That
is why freedom of speech, though not absolute (cites omitted), is
nevertheless protected against censorship or punishment, unless
shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvienience,
annoyance, or unrest. (cites omitted). There is no room under our
Constitution for a more restrictive view. For the alternative
would lead to standardization of ideas either by legislatures,
courts, or dominant political or community groups" (Terminiello v.
Chicago, 337 U.S. 4,5 1948).)
30
In the instant matter the Court is not dealing with
circumstances like those in O'Brien, where a protestant burnt a
draft card, or CCNV, where the Court addressed the issue of "150
people sleeping in 50 tents," with plaintiffs conceding the tents
were facilitative, and that without the ability to provide living
accommodations prehaps no one would show up for their
demonstration.
Here the Court faces the proposition that a group of
officials, fully cognizant that a given activity was expressive
(e.g. Tr. Ex. 162), conceived a plan (36 CFR 50.27(a),
50.19(e)(9)(10), then finally, and with the most focus 36 CFR
50.19(e)(11)(12)) to color that activity as "criminal" or
"prohibited" behavior under those regulations, and ordered,
allowed, encouraged, or condoned the selective implementation of
those and various other regulations against plaintiff to the
detriment of his person, property, and/or exercise of
Constitutional rights.
CONCLUSION
This claim rests on the most fundamental principles of legal
theory and civilization.
"Without respect for the law there is chaos." (Judge
Noel Kramer, D.C. Superior Court, August 8, 1986.)
According to this theory law exists, in the first instance, to
set humanity above the beasts.
"I think we all realize that there is a breakdown of
civilization if people start taking the law into their own hands."
(President Ronald Wilson Reagan. See Plaintiff's Opposition to
Government's Motion to Dismiss President Reagan as Defendant, page
12.) [2]
Respectfully submitted this _____ day
of _____________, 1986.