Plaintiffs' Memorandum Continued

C. THE APPLICABLE LEGAL STANDARDS - PLAINTIFFS' CLAIMS

Since defendants can't dismiss this case under the doctrines of res judicata, or collateral estoppel, plaintiffs assert that 42 U.S.C. 1985(3) provides federal jurisdiction:

"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."

In pertinent part 42 U.S.C. Section 1986 provides a right of action against any person who,

"having knowledge that any of the wrongs conspired to be done and mentioned in Section 1985 of this Title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so if such wrongful act be committed...."

The Court of Appeals has held that in order to state a claim

under this provision, a plaintiff must allege:

"1) a conspiracy, 2) for the purpose of depriving, either.directly or indirectly, any person or class of persons of the equal protection of the laws, and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Hobson v. Wilson, 737 F.2d 1, 14 (D.C. Cir. 1984), cert. denied sub nom Brennan v. Hobson, 470 U.S. 1084 (1985).

In addition, a plaintiff must allege that the tortious actions were the product of a class-based discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88 (1971). [18] Infra, 19.

[18 There is little question that "Section 1985(3) extended to purely political animus to reach conspiracies formed because a person 'was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist or because he was a Vermonter (quoting Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson, supra, at 16, n. 44.

"(S)everal circuits have ruled that politics and religion define such [class-based discriminatory animus that section 1985(3) requires]. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88 (discrimination on basis of political affiliation constitutes class-based discriminatory animus); Ward v. Connor, 657 F.2d 45, 47-48 (discrimination against members of Unification Church), cert denied, 455 U.S. 907; Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 20 (discrimination based on political affiliation with racial overtones) modified on other grounds, 446 U.S. 754; Means v. Wilson, 522 F.2d 833, 839-40 (discrimination against supporters of insurgent candidate for tribal council presidency), cert denied, 424 U.S. 958; Glasson v. City of Louisville, 518 F.2d 899, 911-12 (discrimination against critics of the President), cert denied, 423 U.S. 930; Marlowe v. Fisher Body, 489 F.2d 1057, 1064-65 (discrimination against Jews); Action v. Gannon, 450 F.2d 1227, 1232 en banc (worshippers at predominantly White parish disrupted by Black civil rights workers); see also comment, Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977) ('[T]he legislative history behind section 1985(3) unmistakably LEADS to the conclusion that discrimination [on the basis of political affiliations or beliefs] was intended to be actionable.')." Hobson v. Wilson,737 F.2d 1, 21 (parentheses in original).]

This action was also brought under the First, Fifth, and Ninth Amendments to the Constitution, as well as the principles set out in Bivens v. Six Unknown Named Agents, 403 U.S. 388. With respect to Bivens actions, this Circuit Court said,

"Initially, we note that this Circuit has previously permitted actions to be brought under section 1985(3) against federal officers. See, Fitzgerald v. Seamans, 553 F.2d 220 (1971) (White House official may be liable in section 1985(3) action). As a result, we pause here only to resolve any lingering doubts about the rationale of the law of this Circuit.... Because the law in this area for years was based on conclusory, unsupported statement and misguided interpretations of an unfortunately cryptic opinion, we want to make absolutely clear the basis of our decision." Hobson v. Wilson, 737 F.2d 1, 19.

At bar, plaintiffs claim that, without a discernible legitimate Government interest, various police officers have made a practice of going out of their way to engage plaintiffs in hostile encounters centering on plaintiffs' expressive presence.

"The actions of Officers O'Neil and Keness have been without probable cause. Plaintiffs allege these actions indicate that, animated by political or religious animosity, defendants have entered into a scheme of regulatory enforcement designed to chill, disrupt or terminate the exercise of plaintiffs' constitutionally-protected expressive religious activities in the world's premier public forum." Complaint, pgs. 6-7.

It is further alleged that the actions of Officers O'Neill and Keness were made possible because

"defendant Robbins [19] and other defendants in supervisory capacity have placed freedom of thought and expression, plaintiffs, the general public, and Marcelino Corneil in particular, in danger by failing to properly oversee a well- armed police force, although they knew, or should have known, of extra-legal conflicts by their subordinates toward

[19 Whether Mr. Robbins' involvement was of omission or commission, would be a question for a jury, but it need not be resolved for the purposes of this motion.]

demonstrators and others in the Park." Complaint, pgs. 6-7.

Plaintiffs claim that being subjected to repeated threats and intimidation amounts to "low intensity, high impact psychological warfare which, from the subjectees' point of view, amounts to personal torture."

"Repeated threats and intimidation of plaintiffs by Officers O'Neil, Keness and others has subjected plaintiffs to extreme emotional distress, had a chilling effect on plaintiffs' exercise of rights and privileges granted them under the Constitution, and, () actually deprived plaintiffs of rights and privileges granted them under the Constitution." Complaint, COUNT 8.

The First Amendment provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Here, in the absence of any challenge by defendants, plaintiffs' symbolic vigils in Lafayette Park are self-evidently manifestations of all four First Amendment clauses.

In pertinent part the Fifth Amendment provides:

"No person shall be () deprived of life, liberty, or property, without due process of law."

Respecting plaintiffs' signs and flags, an integral part of plaintiffs' expressive vigil, the actions of Officers O'Neill and Keness amount to "making up the law as they go along." With respect to the similarly-situated Marcelino Corneil, plaintiffs assert that Officer X acted as executioner after Mr. Corneil unfortunately rebelled against Officer O'Neill's edict.

The Ninth Amendment provides:

"The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained by the people." U.S. Const. Amend. IX.

In Buckley v. Veleo, 424 U.S. 1, the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of the expressive nature of plaintiffs' "symbolic vigil" depends on the "quantity" of their round-the-clock "symbolic vigil" in the public forum [20]

Simply stated, although the right of individuals to harmlessly engage in exercising the fundamental freedoms of thought (religious belief) and expression in a public forum, the most fundamental of human rights, without being subject to physical and psychological torment (assault, arrest, intimidation, or even harassment) at the hands of salaried or contract Government agents, may not specifically be enumerated in the Constitution, but for the sake of civilized society, it must be recognized as a right inherently "retained" by the people.

"(R)ights are not fundamental because they find mention in the written instrument; they find mention there because they are fundamental. (F)undamental rights also rest in part on the words of the document, especially those of the Ninth Amendment, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,' and of the Fifth and Fourteenth amendments protecting 'life, liberty, and property' against government's acting 'without due process of law.'" American Constitutional Interpretation, Walter F. Murphy, page 930 (1986).

[20 In fact, as recently as March 5, 1985 defendant Robbins explicitly claimed that the Park Service had no desire to preclude "continuous vigils" from Lafayette Park. Federal Register, Vol. 51 No. 43, pg. 7559, 2nd col., March 5, 1985, for Mr. Robbins' name see, id. 7556, 2nd col.]

Against this background, we turn to the clearly articulated claims of Defendants' Motion to Dismiss.