WILLIAM THOMAS, Plaintiff. v. Civil Action No. 99-0330 (GK) OFC. DAVID LOMBARDI, Defendant.
Factual Summary
Argument
Defendant Lombardi to confront Plaintiff." The sole issue before the Court now is whether or not Defendant Lombardi is entitled to summary judgment on the basis of qualified immunity to protect him from the claim properly stated by Mr. Thomas under the First Amendment. Memo. Op. at 12. Having had an opportunity for discovery, and relying solely on the deposition of Mr. Thomas and defendant Lombardi's own self-serving affidavit, defendant Lombardi offers nothing new in his motion for summary judgment to overcome the concerns of the Court in its prior decision. Memo. Op. at 12-17. Ofc. Lombardi's new motion does, however, make clear the existence of material facts as to which there exists a genuine issue necessary to be litigated, which are set forth in Plaintiffs Statement of Genuine Issues appended hereto. Defendant Lombardi's motion for summary judgment must therefore be denied.
1. Material facts are in dispute which should be determined by a jury at trial.
White House." Defs Mem. in Support at 6. According to Mr. Thomas, however, there was no "loud and boisterous conduct," no "crowd," no "major disturbance." Mr. Thomas's version is supported by the testimony of witnesses identified in his verified complaint and expected to testify at trial, including Frank Wall, whose Declaration is appended as Exhibit A to Plaintiffs Statement of Genuine Issues attached hereto. As Mr. Thomas has "identif[ied} aftlrmative evidence from which a jury could find that [he] has carried [his] burden of proving the [unconstitutional] motive," including his own testimony and that of Mr. Wall, defendant Lombardi's motion must be denied. Crawford-El v. Britton, 523 U.S. 574, 600 (1998).
Q What is your basis for [the] statement [that Officer Lombardi ... was substantially motivated by ... attempting to stop your lawful exercise of your First Amendment rights]? A. Well, I guess it's sort of like inference I suppose, based on the fact that he -when he noticed that some people with a camera and a microphone were getting ready to interview me, he told them you can't use that camera in the park. Well, you know, since there's no law against using a camera in the park, I inferred that he was just trying to give me a hard time. Then when we did the interview and I sat down and started reading the newspaper, I was just reading the newspaper. I wasn't bothering anybody. I wasn't doing anything wrong, but I noted that Officer Gonzales with a bunch of his friends were hanging out a short distance from me and pointing at me and looking at me, and then he came over - Q. He being? A. Officer Lombardi left his group of friends with one of his friends sort of- being Officer Gonzales - sort of trailing along behind a little bit. Officer Lombardi came over to me out of all the people sitting in the park. I was just sitting there, reading a newspaper, doing nothing wrong whatsoever and kicked my literature and told me to get out this trash or whatever it was they he called it out of the park and to leave the park myself.
So because I wasn't doing anything at all that should justify this action on his part, I figured he don't like what I'm saying, the signs and what I'm saying to the news crew, because I just can't come up with any other reason. Maybe he's got a reason for why he did it. I'd be interested to find out.
Thomas Depo. at 85-86. A copy of relevant excerpts from the transcript of Mr. Thomas's deposition is attached hereto as Exhibit B to Plaintiffs Statement of Genuine Issues. Mr. Thomas frankly acknowledged in his deposition that he could not read defendant Lombardi's mind. Thomas Depo. at 88. Neither can this Court. Mr. Thomas considered the facts and concluded, "Reading the newspaper is not disorderly conduct." Thomas Depo. at 87. To the extent that defendant Lombardi tells a different story, the choice of whom to believe must be left to the jury. 1/
2. Defendant Ofc. Lombardi violated clearly established law under the First Amendment to the U.S. Constitution and is, therefore, not entitled to qualified immunity.
1/ "Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Advisory Comm. Notes, 1963 Amendment, Fed. R. Civ. P. 56.
a more fully developed record. Based on that discovery the deposition of Mr. Thomas and his own affidavit, defendant Lombardi renews his claim of qualified immunity. Whether defendant Lombardi is entitled to qualified immunity still depends generally upon whether his actions violated clearly established law or were objectively reasonable. Harlow v. Fitzgerald, 457 U.S. 800 (1982). This Court enumerated in its prior decision the basic principles of qualified immunity doctrine, which are well-established and not in dispute. Memo. Op. at 12-17.
already discussed its well-established contours and concluded. "Retaliation for protected speech is a clearly established constitutional violation. Surely a reasonable law enforcement office would know that he may not retaliate against a private citizen by arresting him for exercising that most basic of American freedoms, the freedom of speech." Memo. Op. at 15 (citations omitted). As defendant Lombardi has offered nothing to alter the Court's conclusion, he is no more entitled to qualified immunity now than he was before. Harlow, 457 U.S. 800 (1984); Butz v. Economou, 438 U.S. 498 (1978); Siegert v. Gilley, 500 U.S. 226 (1991); Woody. Strickland, 420 U.S. 308 (1975).
Conclusion
Respectfully submitted,
(signed Alisa Wilkins)
Alisa A. Wilkins, D.C. Bar #440880
Daniel M. Schember, D.C. Bar #237180
Gaffney & Schember, P.C.
1666 Connecticut Avenue, N.W.
Suite 225
Washington, D.C. 20009
(202) 328-2244
Counsel for Plaintiff