Moreover, even in a criminal case, where these appellants were defendants --
[38 To be accurate a fact-finding process must be more inquisitive.
"When the executive or administrative process abridges constitutional
rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court
rather than the agency that must balance the competing interests. The question
in this case is not whether some support for (defendants' ex post facto regulatory
enforcement rationalization) may be adduced, by reference to evidence in the
record and a claim of [official immunity, or] reasonable inferences or concerns, but
is whether the regulations at issue here are unnecessarily restrictive for the
purpose they are designed to serve." Quaker Action Group v. Morton, 516 F.2d
717, 722, see also, id. ftn. 2, citing United States v. O'Brien, 391 U.S. 367, 377;
Shelton v. Tucker, 364 U.S. 479; United States v. Robel, 389 U.S. 258, 268.]
actually cited for, but acquitted of, violating the camping ban -- there is evidence that
other courts noted significant questions which persist in evading review.
In another circumstance where Park Police agents were just "doing little more than
enforcing regulations," unexamined factual issues left important questions unanswered.
"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." J.
Green, Record at 65, Exhibit 3, pg. 1026.
Appellants offered other examples of less than half-done fact finding. See, e.g.,
Thomas v. United States, 557 A.2d 1296, 1297 (1989), Record at 49, pg. 4, also, Record
at 59, Exhibits 1 & 2. It was an error for the district court not to presume appellants' toes
were on the line, and that appellees were stomping on appellants' toes without probable
cause. Thus, the district court was in error to rely on the legal decisions in Record 117,
Attachment 1 as if these abstractions negated the factual reality at bar.
"THE COURT: Let me ask you this ... hasn't it been one of those things
there 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." Record at
65, Exhibit 2 (United States v. Thomas, USDC Cr. 83-056), pgs. 6, 7.
5. SEPARATION OF POWERS
An unchecked bureaucracy was neither the aim of the Administrative Procedure
Act, nor the intent behind framing a judicial branch. Supra, ftn 23. Unless the judicial
branch draws the line somewhere, there will cease to be any demarcation point to
"set() us apart from totalitarian regimes." Terminiello, supra, also, Record at 39, pg. 2.
The best deterrant to judicial activism, appellants humbly suggest, is a court
which trains its attention on factual reality.
Again, echos of an established pattern of policy abuse are heard.
"The rule that appellant was convicted of violating is a substantive regulation,
subject to the APA's procedural requirements but adopted in their absence.
Before a person is threatened with jail for such a violation, the government must
ensure that the rule itself is not in violation of the law." Picciotto, supra, 349,
By abrogating its fact-finding responsibility in deference to counsel's bald
representations, the district court abandoned judicial scrutiny in favor of administrative
whim. Appellants do not believe this oversight is the correct approach.
"(T)he post hoc policy rationalization belatedly supplied by the Director cannot
be thought to provide the necessary binding standards where the regulation has
none. Cf. Shuttlesworth v. Birmingham, supra, 394 U.S. at 153." United States
v. Abney, 534 F2d 948, 986 (1976). Compare, supra, ftn. 23.
Based on the foregoing, and supported by the record as a whole, it is apparent
that the merits of the instant appeal are not so clear as to make summary affirmance
appropriate. Indeedm in light of the Court's decision in Crawford-El, summary reversal
might not be inappropriate.
Respectfully submitted this 23rd day of October, 1996.
Concepcion Picciotto, Appellant, Pro Se
Post Office Box 4931
Washington, D.C. 20008
William Thomas, Appellant, Pro Se
P.O. Box 27217
Washington, D.C. 20038
Ellen Thomas, Appellant, Pro Se
P.O. Box 27217
Washington, D.C. 20038