i) SOME NON-CONCLUSORY ALLEGATIONS
OF RESPONDENTS' COMMON PLAN
The District Court held that, "(e)xcept for isolated
instances of misconduct ... plaintiffs have failed to support
their conclusory allegations of conspiracy." App. p. 30.
In contrast, prior to his "without prejudice" dismissal,
Judge Oberdorfer held,
The camping regulation was ostensibly intended to address
the specific of "demonstrators ... sleep(ing) in tents." Clark
v. CCNV, 468 U.S. 288. Respondents agreed that "overnight
sleeping in connection with the demonstration is expressive
conduct." Id. 299. Earlier, in the Circuit Court, respondents
had stated a specific distinction between the "protected" and the
- "Plaintiff lists each defendant and each act allegedly
undertaken by that defendant in furtherance of the
alleged conspiracy. This detail provides defendants
with the definite statement required by Fed. R. Civ. P.
8." Thomas II, Order, June 5, 1986. App. p. 61.
Petitioners respectfully submit Judge Oberdorfer's opinion
"Turning first, now, to the camping allegations, let 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 [brackets
substituting]. App. ps. 134, 135.
Despite those representations to the court, on June 17, 1981
Respondent Robbins, in concert with others, suspended the delay
of effectiveness (Fed. Reg., June 4, 1982, Vol. 47, No. 108, p.
24302) required by 5 USC 553(d), and enforced the regulation,
without probable cause, against Petitioner Picciotto -- who had
neither tents nor shelter, or structures, and who wasn't even
sleeping. Record, Docket # 11, para. 13.
The "camping" regulation "furnished a convenient tool for
harsh, discriminatory enforcement" (infra, p, 23, 35, 46-47, 57-
60) and the "unrestrained power to arrest and charge persons with
a violation." Thomas II at 709, citing Kollander v. Lawson, 461
U.S. 352, 360 (1982). But, as the Record suggests, not harsh
enough to fully satisfy respondents' desire to suppress
After the "camping" regulation and their concerted efforts
under color of D.C. regulations failed to dislodge petitioners
from Lafayette Park, respondents began fashioning another
regulatory scheme in pursuit of the same objective, strengthening
the logical inference that in respondents' minds they were
pursuing an ongoing plan.
It is certainly conceivable that when Respondent Robbins met
with Mr. Watt in March, 1983 (infra, A MEETING OF MINDS TO
ILLUSTRATE THE "ONGOING CONFLICT, p. 28). Mr. Robbins informed
Mr. Watt that it would be unconstitutional to prohibit
demonstrations outright (see, App. ps. 162, 163), therefore
Robbins and Watt agreed to subvert the Constitution, "on an
incremental basis" (Thomas II, at 705), through regulatory
Whether the connection, in respondents' minds, between Clark
v. CCNV and White House Vigil v. Clark was malicious, is a very
important, unanswered question.
- "According to the Park Service's interpretation of the
new regulations, one's participation in a demonstration
as a sleeper becomes impermissible 'camping' when it is
done within any temporary structure erected as part of
the demonstration." CCNV v. Watt, 703 F.2d 589.
Thus, the CCNV/Clark/White House Vigil connection remained
unresolved when the Circuit Court concluded, "the issue for
decision is not factual, it is legal" (White House Vigil, 476
F.2d 1518, 1528, 1529), and the District Court is mistaken when
it relies on White House Vigil to foreclose judicial review of
the broader instant Complaint. Huddle Memo, p. 20.
Without checks or balance to restrain them, respondents
persisted in pursuing the same objective, fabricating a "Current
Situation in Lafayette Park" (Fed. Reg., April 22, 1983, Vol 48,
No. 79 p. 17352. Record, e.g., Docket # 45, Exhibit 68) to
justify harsher unrestrained regulatory power aimed at:
- "The photographs contained in the administrative
record depict the activities of certain long-term
demonstrations on the White House sidewalk, ... and
when the government witnesses testified about the
conditions on the sidewalk that prompted these
regulations they referred specifically to these same
- "Many of the exhibits offered by the government
appear to be unrelated to (the White House sidewalk)
regulations. For example, the government introduced
into evidence numerous Park Police reports concerning
demonstrators 'camping' on the White House sidewalk,
which is not a subject addressed in the regulations.
In addition, the 'camping' problem was cited as
prompting discussions on these regulations. In fact,
other regulations, not in issue, address the camping
- "Additionally, plaintiffs urge that the key fact
that both versions of the regulations just happened to
proscribe all of the plaintiffs' then current
activities on the sidewalk cannot be regarded as mere
- "In the circumstances it would appear that
plaintiffs' claim in this regard in no wise can be
characterized as frivolous; however in light of this
court's disposition of this case, it need not resolve
this particular issue." White House Vigil v. Clark,
USDDC CA. No. 83-1243, Memorandum Opinion, April 26,
1984, J. Bryant, ps. 11-15, Record, Docket # 45,
Exhibit 69, App. ps. 159-163.
On April 27, 1983, after respondents suspended the delay of
effectiveness of their April 22nd rulemaking (without "good
cause," see, App. ps. 150, 151), Petitioner William Thomas was
promptly arrested without probable cause, Docket # 1, para. 39.
Respondents' preoccupation with the same objective is
evident in their description of another purported "Current
Situation in Lafayette Park":
- "two individuals who have in the past and are presently
maintaining a daily demonstration in front of the White
Respondents never disputed that signs or daily "occupation"
(supra, ftn. 11) of the White House sidewalk are constitutionally
protected; instead, echoing the intent of Mr. Watt's memorandum
of January 13, 1983 (App. p. 178), they merely pointed
- "(A) handful of demonstrators has occupied the White
House sidewalk daily for a year and a half." Fed.
Reg., June 17, 1983, Vol. 48, No. 118 (Record, Docket #
45, Exhibit 78), p. 28053.
Although it is settled that "(o)ne is not to have the
exercise of his liberty of expression in appropriate places
abridged on the plea that it can be exercised in some other
place" (Schneider v. State, 308 U.S. 147 (1939)), respondents
manipulated the facts (infra, p. 28-31, 47) until the Circuit
Court agreed that the alternative across the street was
sufficient. White House Vigil at 1528.
In 1985 respondents, apparently still not satisfied that
"demonstrations and protests" had been sufficiently prohibited,
portrayed yet another aspect of a constantly shifting,
euphemistic "Current Situation in Lafayette Park," where,
- "to the availability of Lafayette Park, the Ellipse and
the Mall as alternative sites for (petitioners')
activities." Record, Docket #45, Exhibit 69, J.
Bryant, p. 27. App. p. 175.
In still another "Current Situation in Lafayette Park,
respondents' continued interest in the "Thomas Vigil" was again
obliquely expressed by reference to "a few demonstrators who
physically occupy ... space in the Park with signs." Fed. Reg.,
March 5, 1986, Vol. 51, No. 43, p. 7557, Docket # 131.
- "(o)ver the past two years, two to six demonstrators
have accounted for a vast majority of the ... signs
that continuously occupy ... Lafayette Park.
"One of these signs indicated that ... the ...
signs belonged to two persons who had been in the Park
since June of 1981." Fed. Reg., August 20, 1985, Vol.
50, No. 161 (Docket, Docket # 45, Exhibit 129), p.
By this juncture of their ongoing onslaught against
demonstrations in a "unique public forum," respondents, with the
assistance of the U.S. Attorney's Office, had achieved a level of
judicial tolerance which enabled them to summarily exonerate
themselves of any appearance of wrongdoing by merely publishing a
one paragraph summation of an "investigation" in the Federal
Because petitioners have never succeeded in securing a
hearing, respondents were able to transform a 1700-odd page
collection of paper into an unnecessary, injurious regulation
(infra, A MEETING OF MINDS IN FURTHERANCE OF THE MAIN CONSPIRACY,
p. 32-34.) regulation without any direct judicial inquiry.
The "Thomas Vigil" endured, so respondents continued their
concerted attack on the "Current Situation in Lafayette Park,"
- "The ACLU specifically questioned the motives of the
National Park service in promulgating these
regulations, suggesting that the sole purpose for the
amendments is to harass certain individuals now
demonstrating in Lafayette Park. To support this
proposition, the ACLU attached to its comments several
affidavits by Concepcion Picciotto, a long-time
demonstrator, that alleged ... the Park Service is
allowing private citizens to destroy demonstrators'
signs." Id. p. 7560.
The Federal Register publication of October 4, 1990 was also
at issue in this Complaint. Infra, p. 42-43,
- "(O)ver the past three years the National Park Service
has received at least five written requests for some
action against the visual blight in Lafayette Park.
Typical of these complaints is the following....
"'(I) am not happy when I am forced to pass by, and
am forced to see ... the people who camp and live in
Lafayette Park ... in exercise of their rights of
political dissent'." Fed. Reg., October 4, 1990,
Vol. 53, No. 193, p. 40680. S. CMPLT. Ex. 22.
"[W]e expect that the relationships between the actors
and the actions (... the duration of the actors' joint
activity) are relevant in inferring an agreement in a
civil conspiracy." Halberstan v. Welch, 705 F.2d 481
(parentheses in original).
It is this joint regulatory progression, which has eluded
judicial attention, and whittled away enough of the First
Amendment to provide respondents with enough latitude to wage
their "ongoing conflict."