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.]
5
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.]
6
- "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).]
7
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). ]
8
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).]
9
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.]
10
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.]
11
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.]
12
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).