Plaintiffs' Memorandum Continued



B. THE APPLICABLE LEGAL STANDARDS - MOTION TO DISMISS

When presented with a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and its allegations must be taken as true. Moreover, any ambiguities or uncertainties concerning the sufficiency of the claims must be resolved in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5, 10 (1980); Scheuer v. Rhodes, 416 U.S. 232, 236 (1979); see also 5 Wright C Miller, Federal Practice and Procedure 6 1357 (1969). As the Supreme Court has stated,

1. IDENTITY CRISIS

Defendants' oldest "argument" is really an insinuation,

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which casts plaintiffs as "perennial demonstrators" [4] (Deft's ORMD, pg. 1; Deft's MD, pg.1, Deft's Opp. TRO pg. 2) devoted only to "protesting against the Government." [5] In sum, defendants clearly imply:

  • WE (DEFENDANTS) HAVE BEEN DOING THIS FOR YEARS; THE COURTS HAVE NEVER BEFORE BOTHERED TO CHECK US, OR LET PLAINTIFFS (EVEN AS DEFENDANTS), GET TO THE UNEXAMINED FACTS OR UNRESOLVED CONSTITUTIONAL QUESTIONS; SO THIS COURT SHOULDN'T BE SWAYED BY FACTS NOW. Compare, cases cited, Defendants' Motion to Dismiss, pg. 2; Defts'
    Opp. TRO, pg. 1.

Plaintiffs, on the other hand, see themselves differently, and are entitled to have the "fact" of their "vigil" cast in the light of "promoting reason and logic" while opposing "force and violence." Argumentum a majori ad minus negative non valet; valet e converso.

  • "(L)et us make some findings of fact. We are in an area where a vigil protected by the constitution and by a governmental permit has been taking place [since June 3, 1981]. It is a vigil that was described in the testimony of the government witnesses as, quote, the Thomas Vigil, end quote." Transcript, United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 85-255, ps. 1014, 1015, September 25, 1985; Exhibit 3, hereto.

Since June, 1981, plaintiffs have chosen to sacrifice their own personal pleasures and comforts, "attempting to maintain


[4 "We are additionally spared the need for any extended 'forum analysis' in this case, as no one disputes that Lafayette Park is a 'quintessential public forum,' see White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly, 'the government's ability to permissibly restrict expressive conduct [there] is very limited.' United States v. Grace, 461 U.S. 171, 177; see Hague v. CIO, 307 U.S. 496, 515-16." United States v. Nomad, 968 F.2d 86, 88 (1992).]

[5 Denied: See, Plaintiffs' Third Motion for Sanctions, Exhibit 6, pg. 6, see also, infra, MORAL AND ETHICAL QUESTIONS.]


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constant, all-weather, around-the-clock expressive vigils [6] in Lafayette Park, in what they see as "a humble service" to the Creator of the Universe. United States v. Thomas, USDC Cr. No. 82-358, pg. 20 (July 5, 1983), Exhibit 1, hereto. [7] Their purposes are to seek wisdom and honesty, and to warn the public about the dangers of nuclear war." See, Second Declaration of Ellen Thomas, March 20, 1995," filed this date as Exhibit 4; see also Plaintiffs' Third Motion for Sanctions, filed January 9, 1995, Memo, pg. 2.

Motivated by the idea that the public doesn't take the issues of wisdom, honesty and national preparations for indiscriminate mass murder as seriously as it ought, plaintiffs' vigils are individual efforts to be available in the public marketplace of ideas at all hours of the day and night.

It is undisputed that plaintiffs' vigils have had "a symbolic purpose." United States v. Thomas, 864 F.2d 188, 193. From the Record it is evident that the public was likely to understand these efforts. E.g.,


[6 36 CFR 7.96(g)(1) provides: "(T)he term 'demonstration' includes demonstrations ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views ... which has the effect, intent or propensity to draw a crowd or onlookers." See also, infra, ftn. $$.]

[7 "Indeed, in dismissing ... criminal informations ... which involved (two) individual plaintiffs in the present action and arose out of the same expressive activities at issue here, the district court assumed that appellees' anti-nuclear vigil in Lafayette Park was the product of sincerely held religious beliefs. United States v. Galindez, et. al., USDC, Cr. No. 87- 60-64, rev'd and remanded on other grounds, (D.C.Cir Sept 22, 1987)." Thomas v. News World Communications, 681 F.Supp. 55, 69.]


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  • "It is the right of every American to take a stand and make a point in Lafayette Square." Caption under a picture of Plaintiff Concepcion Picciotto, Berlitz Travel Guide, 1991, Second Declaration of William Thomas, Exhibit 2-C; see generally, Exhibits 1-3 (February 13, 1995).

Hence, the question here is whether a fourteen-year-old vigil implicates First Amendment protection, or whether, as defendants urge, jurisprudence in this nation, under color of "public nuisance," must condone arrest, assault, intimidation, or whatever other means Government agents find "necessary" to harass people who are raising issues of profound importance in a "quintessential public forum."

2. STARE DECISIS

By plaintiffs' reckoning stare decisis is defendants' lengthiest, if not sole, genuine argument. [8] But, it rests upon a void of factually-unresolved issues which evaded judicial review, after the underlying complaints failed to survive drawn- out Motions to Dismiss based, as this one, purely on legal theory.

Stare decisis is a doctrine of policy, grounded on the theory that security and certainty require that accepted and established legal principle, under which rights may accrue, are to be recognized and followed, though later found to be not legally sound; but whether previous holdings of a court shall be adhered to, modified, or overruled is within courts' discretion under circumstances presented by the case before it. See, Otter


[8 For further discussion, see, Plaintiffs' Third Motion for Sanctions, pgs. 9-11 (February 9, 1995).]

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Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 607.

Defendants are correct in noting that plaintiffs previously claimed they have been

  • "repeatedly arrested, beaten, harassed and otherwise mistreated by the police for their activities." Thomas v. United States, 557 A.2d 1296, 1297 (1989).[9]

Historically, defendants have evaded scrutiny of the factual merits with factually-deficient "arguments":

  • "Indeed, similar claims of conspiracy and deprivation of First Amendment rights brought by these plaintiffs have been rejected more than once. See Huddle v. Reaqan, 1991 U.S. Dist. LEXIS 7070 (D.D.C. 1991)." Defendants' Opposition to TRO, pg. 3 (February 23, 1995). [10]

Huddle relies, in fact, upon Thomas v. United States, 696 F.Supp. 702 (DDC 1988), which, in turn, relies on Thomas v. New World Communications, 681 F2d 55, 67 (1988), which in turn, relies on United States v. Galindez, No. 87-0060 (D.C. Cir. Sept 22, 1987), which in turn resulted in United States v. Thomas, 864


[9 Since 1983 Concepcion, who is most regularly at the vigil site, hasn't been convicted of anything that wasn't overturned on appeal. United States v. Picciotto, 875 Fad 343, 347 (1989).]

[10 Indeed, to more fully appreciate the consistency of defendants' evasive tactics, one need only COMPARE Defendants' Motion to Dismiss (January 11, 1995), WITH Huddle v. Reaqan, USDC 88-3130, Defendants' Motion to Dismiss (December 21, 1988):

  • "Plaintiff William Thomas is a perennial demonstrator in the White House/Lafayette Park area who has, since June 1981, sought to maintain a continuous vigil at those areas. Over the ensuing years Mr. Thomas has been joined in his efforts by each of the other plaintiffs; first by Concepcion Picciotto, later by Ellen Thomas, and more recently by plaintiffs Huddle, Joseph, Harmony and Galindez....
    "The confluence of plaintiffs' continuous presence in the White House/Lafayette Park area with federal regulations at 36 CFR Sec. 7 has resulted in numerous arrests of the plaintiffs in the years since 1981." Huddle, Motion to Dismiss (December 21, 1988), ps. 4, 5, citing, Thomas v. United States, 696 F.Supp. 702 (D.D.C. 1988). ]

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F.2d 188.

In fact, the only stare decisis applicable to this case was compiled in January, 1986 by Judge (then U.S. Federal Magistrate) Arthur Burnett, the only fact finder in the nation's judicial system to ever consider any evidence regarding plaintiffs' claims of police abuse. [11] See, Plaintiffs' Motion to Recuse (January 9, 1995), Exhibit 2.

After listening to "the testimony taken upon deposition in the presence of the Magistrate of ten (government) witnesses in the case" (id. pg. 6), the Magistrate decided that there was "an incredible number of incidents stemming from these arrests [12] on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct" (pg. 8) "which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Id., pg. 14.

The Magistrate's Memorandum, January 13, 1987, is cited in Thomas v. United States, 696 F.Supp. at 706. The Magistrate's judgment is questioned, the facts are merely cloaked under a


[11 Earlier Magistrate Burnett also went on Record as the first federal jurist to convict under the same "camping" regulation at issue here. See, United States v. Thomas and Harris, USDC Cr. No. 82-0296 (September 3, 1982), which makes his later opinion all the more significant.]

[12 Magistrate's Memorandum, Appendix, records 25 arrests and 14 convictions of Thomas. Actually the number of arrests was higher, while the number of convictions was only 7. Thomas' Declaration, February 9, 1995, Exhibit 6, transcript, United States v. Thomas & Thomas, USDC Cr. No. 87-067 (J.Richey), pg. 5).]

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conclusory conclusion:

  • "Defendants do, however, deny that the regulations, as written or as enforced against plaintiffs, are unconstitutionally vague." Id. 707. [13]

Of course, it is no great surprise that defendants would deny that their manner of enforcing regulations violates the Constitution, but that alone doesn't prove their claim is true, or provide any basis for ignoring the factual issues raised by the case presently before the Court.

a. UNRESOLVED FACTUAL QUESTIONS

Regrettably, often when plaintiffs raised claims of police abuse it was under circumstances when they were defendants, so their factual claims evaded review on other legal grounds. E.g., United States v. Thomas, 557 A.2d 1296, see also, Declaration of William Thomas, Exhibit 6, pg. 42 (February 6, 1995).

However, the cases cited by defendants also left other unresolved FACTUAL questions. E.g., Thomas et. al. v. Reagan, et. al, 113 S.Ct. 2397, cert denied, (May 13, 1993), J White, dissenting; in light of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 2397, see also, Clark v. Community for Creative Non-Violence, 466 U.S. 288, 315, dissent, Justices Marshall and Brennan.

b. "SIGNIFICANT CONSTITUTIONAL QUESTIONS"

The longest and probably most objective judicial assessment


[13 Plaintiffs are not challenging the regulations at issue, and it has only become necessary to rehash this local history because defendants raised the issue.]

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of a "camping" arrest [14] resulted in the conclusion that:

  • "The Court's ruling today does not mean that the Government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, 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 ... granted." U.S. v. Thomas et al, CR No. 84-233, September 27, 1984 transcript, pg. 1026. Exhibit 3, hereto, pg. 1026.

c. QUESTION AT BAR: WHO'S PLAYING A GAME?

Over the years, as the facts underlying plaintiffs' allegations of official abuse of authority have remained hidden, clear-thinking people have suspected a "game." E.g.:

  • "THE COURT: Let me ask you this ... hasn't it been one of those things where he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."
    "THE GOVERNMENT: He plays games.
    "THE COURT: Well, I don't know who is playing a game really." United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983, Exhibit 2, hereto, pgs. 6 & 7.

At the risk of seeming unreasonably insistent, the only undisputed facts on the Record of THIS CASE are those contained in THE COMPLAINT. Moreover, it is physically impossible for any previous litigation to have made any determinations about the allegedly improper conduct which gave rise to THIS CASE, because


[14 Plaintiffs submit that the final resolution of a second "camping" case (acquittal), United States v. Casimer Urban Jr., USDC 84-00309 (October, 1984), J. Norma H. Johnson, may have been as objective.]

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the conduct alleged now hadn't happened then. [15]

d. MORAL AND ETHICAL QUESTIONS

Due to petitioners' religious obligation to be in the park, the Government has given conscientious courts a moral dilemma:

  • "THE COURT: If I follow the government and find him guilty, what am I supposed to do with him? He doesn't have any money. If I put him on probation, he's going to be right out there doing the same thing. The criminal penalty isn't enough to deter him, point 1. Point 2, I have a hard time sleeping putting him in jail, actually, for -- what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world. (--)
    "THE COURT: You don't want to put him in jail, huh?
    "THE GOVERNMENT: We are going to ask for that.
    "THE COURT: For how long? What is the maximum period of time?
    "THE GOVERNMENT: Six months. If your honor would like to send them to Sacramento to demonstrate in front of the state capitol out there we wouldn't have any strong objection." United States v. Thomas, USDC Cr. No. 82-358, J. Bryant, July 5, 1992, Exhibit 1, hereto, pgs. 9. and 12.

e. ACADEMIC QUESTION

If stare decisis rules here, why haven't defendants moved to dismiss under collateral estoppel [16] or res judicata? [17]


[15 The Court should concentrate on the present and the future, not only because it's the forgiving thing to do, but also because it's obligated by law:
  • "If, for instance, a judge presiding over a retrial should state, based upon facts adduced and opinions formed during the original cause, an intent to ensure that one side or the other shall prevail, there can be little doubt that he or she must recuse. Cf. Rugenstein v. Ottenheimer, 78 Ore. 371, 372, 152 P. 215, 218." Liteky, et. al. v. United States, 92-6921 (March 7, 1994), 54 Crl 2182, concurring opinion at 2187.]

[16 "When an issue of ultimate fact has been determined by a trial judgment, that issue cannot be again litigated between the same parties in future litigation." City of St. Joseph v. Johnson, 539 S.W.2d 784, 785.]

[17 "A thing judicially acted upon or decided." Machett v. Rose, 344 N.E2d 770, 779.]


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With all due respect, had the honorable Courts involved with the earlier cases settled the issue of clear regulatory guidelines, defendants would certainly be in a stronger position today. But, since defendants can't dismiss this case under the doctrines of res judicata, or collateral estoppel, why have they been confusing the issues here with discussions about stare decisis? See, Third Motion for Sanctions (February 9, 1995).