THOMAS v. REAGAN

USDC Cr. No. 84-3552

CONSPIRACY
ARGUMENT

"Congress shall pass no law respecting an establishment of religion, the free practice thereof, freedom of speech, freedom of the press, and the right of the people peaceably to assemble and to petition the Government for redress of grievances." (First Amendment to United States Constitution.)

"If two or more persons in any state or territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the law or of equal privileges and immunities under the laws; ... if one or more persons engaged therein do, 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." (42 USC 1985(3), emphasis added.)

"A 'civil conspiracy' is an agreement between two or more

people to participate in an unlawful act or a lawful act in an unlawful manner...

"An express agreement among all conspirators is not necessary to prove a civil conspiracy....

"Civil conspirators must share general conspiratorial objective but need not know all details of plan or possess same motives....

"To demonstrate existence of a conspiratorial agreement, it simply must be shown that there was a single plan, the essential nature and general scope of which were known to each person so as to be held responsible for its consequences....

"To make a conspiracy actionable, there must be an overt action in furtherance of object of conspiracy that injures plaintiff(s) in (their) person or property or, in a civil rights conspiracy action, which deprives plaintiff(s) of having or exercising any right or privilege of a citizen of the United States." (Hobson v. Wilson, 737 F2d 5 (1984).)

"(T)he record in this case abundantly supports the claim that the traditional way of life of (plaintiff Thomas) is not merely a matter of personal preference, but one of deep religious conviction, shared by (his wife), and intimately related to daily living. That (Thomas') daily life and religious practice stem from (his) faith is shown by the fact that it is in response to (his) literal interpretation of (certain) Biblical injunction(s)." (See, e.g., Daniel Chapter 3; Matthew 5:9, 6:24-48, 7:11-12; Isaiah 1:17-18, 29:7-24; Revelation 13:1-18, 18:1-5; Luke 9:54-58, 10:8-16, 11:38-52, 16:20-31, 17:18-25, 20:21-24.) (Wisconsin v. Yoder, 406 US 205, 216 (1972).)

"The record ... demonstrates that (plaintiffs), in displaying (their) placard(s) which contained a constitutionally protected message, in a peaceful manner, from an appropriate place, (were) engaged in activity protected by the First Amendment, and that the destruction (or confiscation) of (their) signs by (Government agents) deprived (them) of that right. (They) thus made out a prima facie case for damages under section 1983." (Glasson v. City of Louisville, 518 F2d 904, 908 (1977), USApp 6th Dist. (cert. denied).)

"Complaint alleging that defendant(s) made false statements which provided basis for criminal process under which plaintiff(s) (were) arrested alleged malicious use of process only, but where fair reading of complaint suggested that defendant(s) had been member(s) of conspiracy to deprive plaintiff(s) of (their) constitutional rights ... plaintiff(s) should be given opportunity to prove that defendant(s) (were) part of such conspiracy to abuse process...." (Jennings v. Shuman, 567 F2d 1214-1215.)

"For purposes of (42 USC 1985(3)) a defendant is personally involved in the acts of his subordinates if he had knowledge of conduct, and consented to it; he need not have taken part." (Alvarez v. Wilson, 432 F.Supp. 137 (1977).)

"A government regulation is sufficiently justified if it is within the Constitutional power of the government, if it furthers an important or substantial governmental interest, if the

governmental interest is unrelated to the suppression of free expression and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (USA v. O'Brien, 391 US 337 (1967).)

There would be no difficulty with a regulation that is "not intended to stifle First Amendment expression, but rather to protect undesignated areas from activities for which they are unsuited or the impacts of which they cannot sustain." (Tr. Ex. 28, p. 24304.)

Plaintiff is not asserting that he has any right pursuant to the First Amendment to yell "fire" in a crowded theater.

(JUDGE WILLIAM BRYANT): (p. 4) "I listened to the tape, and they locked the man up for going to sleep. And he says that is part of his -- he is out there forever, 24 hours.

"In the face of it, it's a piddling case; but, really, it is a bedeviling case....

(p. 5-6) "Let me ask you this. I agree with you, but hasn't it been one of those things where he gets arrested today for doing 'X' conduct, and then he goes back out and he does 'X-Y' conduct, right? And he gets arrested. And then he goes back out and does 'X-Y-Z.' In other words, wherever you folks draw the line, he wants to stay on that line, wherever you want to draw the line."

(Tr. Ex. l24, Judge Bryant USA v. Thomas CR 83-358, July 5, 1983, transcript p. 6-7.)

(p. 9) "What bothers me is ... the definition (of camping) when (Thomas) was arrested.... And the police officer, it was clear to him that he was acting because he felt they were asleep; and this was the activity that put them in violation, and I'm sure they still feel that way.... 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 worst criminal, put him in jail."

(MR. MARCY): "Your Honor, he is not a minimal harm.... He has been there since I believe June of the previous year....

(p. 11) "It is not an easy case, your Honor, but we would suggest to the Court that there is only one road to go down at this point. The defendant has been given every opportunity to conform his conduct, and he has failed to do so, and we would ask the Court to incarcerate him....

(p. 12) "Six months. If your Honor would like to send him to Sacramento to demonstrate in front of the state capitol out there, we wouldn't have any strong objection."

(Tr. Ex. 52, USA v. Thomas CR 83-358, transcript July 5, 1983.)

This is the basic question for consideration in this case: whether plaintiff was exercising a well-established right and whether defendants planned and executed actions for the purpose of depriving plaintiff of that right under color of various regulations.

Plaintiff takes no exception to Government's attempts to preserve resources; rather, the exception taken here and the alleged wrongful action is that a regulation purportedly intended to protect resources has in fact been applied to suppress expression.

At his deposition on August 22, 1986, defendant Robbins admitted that the reason the camping regulation had been amended was because the U.S. Attorneys had experienced difficulty getting convictions under the old regulations. The fact that throughout the entire five-year period covered by this litigation defendants are totally unable to point to one (1) instance where actual material harm has resulted from plaintiff's allegeed "camping" should be seen as conclusive proof that plaintiff's actions caused no harmful impacts.

Since defendants admit that plaintiff's actions were expressive, and the record illustrates that plaintiff has been repeatedly arrested for camping, plaintiff thinks the only possible conclusion is that the camping regulation has, without probable cause, been applied against plaintiff with the intended effect of disrupting his expressive activities.

When the "camping" regulations failed to solve the "problems which (were) occurring on the White House sidewalk" (Tr. Ex. 54), defendants escalated the abuse their regulatory discretion.

"(W)hen the government witnesses testified about the conditions on the sidewalk that prompted these(36 CFR 50.19(e)(9)(10)) regulations, they referred specifically to the same long-term demonstrators." (Tr. Ex. 96, p. 11, Judge Bryant's Memorandum Opinion, ERA v. Watt, filed April 26, 1984.)

Here history and common sense show that the long-term demonstrators are the same "two individuals who have in the past and are presently maintaining a daily demonstration in front of the White House (and) have had as many as 25 signs or placards leaning against the White House fence." (Tr. Ex. 95, 108, 112.) It is also obvious that these are the same "two individuals who have been in the Park since June 1981." (Tr. Ex. 74.) It is also obvious that the signs referred to in 36 CFR 50.19(e)(11)(12) are the same signs which defendants admit were moved to Lafayette Park as a result of the White House sidewalk regulations 36 CFR 50.19(e)(9)(10).

Plaintiff has clearly, repeatedly alleged that in order to implement the White House sidewalk regulations, defendant fabricated and swore to an incident in which an individual purportedly used one of plaintiff's signs to scale the White House fence.

"Defendants' (Lindsey and Parr) testimony that a large sign had been used by an individual to scale the White House fence fell apart at the trial. There was no evidence that any sign belonging to the plaintiffs or anybody else had ever been used to scale the fence."

(Tr. Ex. 96, Judge Bryant's Memorandum Opinion, ERA v. Clark, CA 83-1243, Apri1 26, l984, at p. 22.)

Tellingly, counsel has absolutely ignored this allegation during the course of this litigation.

Additionally, in researching this case, plaintiff has noticed that defendants apparently engaged in yet another bit of judicial slight-of-hand which escaped detection in ERA. Plaintiff believes testimony will indicate defendants intentionally misrepresented, under oath, the situation which existed on the White House sidewalk during the relevant time period. Allegedly they would have acheived this hocus pocus by offering into evidence photographs taken of signs on the White House sidewalk during the period preceding the camping regulations -- a period when, admittedly, there were numerous parcels (belonging to individuals other than Thomas) and signs on the White House sidewalk -- misrepresenting that situation as what was occurring in 1983. By the time the ERA case was being tried, the "situation" had radically changed. (See, e.g., Tr. Ex. 98(b), photographs April 27, 1983.)

"On April 22, 1983, the Park Service published new 'interim regulations' regarding demonstrations and the placement of property on the White House sidewalk. 48 Fed. Reg. 17352. Although promulgated without prior public notice, or opportunity for public comment these interim regulations were effective immediately. On April 27, 1983 (Concepcion Picciotto, Robert Dorrough, and William Thomas) were arrested for violating the interim regulations. Two days later the instant suit was filed challenging the regulations on both procedural and constitutional grounds.

"On May 3,1983 an evidentiary hearing was held on the plaintiffs' first motion for a Temporary Restraining Order enjoining enforcement of the regulations. At the conclusion of this hearing the Court granted the motion on the ground that 'good cause' had not been shown for waiving the notice and comment requirement for informal rulemaking set forth in the Administrative Procedure Act, 5 USC 553. Subsequently, on May 17, the interim regulations were republished by the National Park Service as a proposed rulemaking with an additional comment period extending to May 31. 48 Fed. Reg 22248.... These final regulations were to become effective eighteen days later on July 4. . .

"A hearing was held on June 30th and on July 1st the Court issued a Memorandum and Order on the ground that 'good cause' had not been shown for shortening the 30 delay in effectiveness required by the Administrative Procedure Act 5 USC, 553."

(Tr. Ex. 96, ERA v. Clark, USDC CA 83-1243, Memorandum and Order, J. Bryant, filed April 26, 1984.)

Although counsel points out that Judge Norma Holloway Johnson granted summary judgment in favor of the federal defendants in another civil action challenging two other arrests which occured under the same circumstances (Federal Defendants Motion for Summary Judgment, filed August 29, 1986, at 16), we would certainly like to think that Judge Johnson would have given the matter more serious consideration had she considered all the additional information available to this Court.

"This settled principle (of conspiracy) derives from the reason of things in dealing with socially reprehensible conduct;

collective criminal agreement -- partnership in crime -- presents a greater potential threat to the public than individual derelicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise." (Ianelli v. United States, 420 US 770.)

Counsel concedes it is sufficient cause to admit improper conduct "when agents carry out an official government policy" (Lindsey's Law, ftn 1 at 6). However he is in error to state plaintiff "does not specifically allege that Lindsey was carrying out an official government policy." (ibid).

"On January 13, 1983 defendant Watt wrote a memo to Moody Tidwell codifying a DOI/NPS administrative policy which has, in practice, guided those agencies to this day...." (Tr. B. para 59, see also, Amended Complaint para 11, see also Amended Complaint, para. 10 and 11).

It might certainly defendants have assumed the position that the rights plaintiff asserts -- primarily rights of belief, expression, and access to public forums -- are creations of administrative regulation rather than constitutional mandate.

The Deputy Chief of the U.S. Park Police, the agency responsible for enforcing the "camping" regulations, testified that "sleeping" was not "camping" (Tr. B. para 39, see also, Complaint, para 47(a)(b)), yet various officers under his command later testified that they had received instructions from their supervisors that "sleeping" was "camping" (Tr. B. para 40, 128).

"For purposes of (42 USC 1985(3)), a defendant is personally involved in the acts of his subordinates if he had knowledge of conduct, and consented to it; he need not have taken part." Alvarez v. Wilson, 412 F. Supp 137.

"No state may agreeably to the Constitution intercept a message or remove it from the channels of communication solely because of its content unless it is obscene." (Glasson v. City of Louisville, 518 F2d 904, US App 6th Cir (1977) Cert. denied).

Plaintiff has alleged that defendants Robbins and/ro Lindsey et al were present on at least several cccasions when plaintiff's signs and mobile speaker's platform was confiscated and/or destroyed.

Counsel merely observes that defendant Lindsey swears plaintiff's signs weren't destroyed, only "disassembled" for transportation reasons. (Lindsey's Declaration at ____).

Pictures show there was no need to "disassemble" plaintiff's mobile speaker's platform because it could be accommodated intact by Park Service transport vehicles (e.g. Complaint pages 51, and 88, see also Ad Rec ____, COMPARE Declarations of William Wardlaw, Tr. Ex. 163(b), and Second Declaration of William Thomas Tr. Ex. 146(g)).

"Where police officers ... acting pursuant to general notice given at (a) meeting at which police chief was present, destroyed (a) protest sign ... police officers were liable for violation of protester's right to free expression and police officers and police chief were liable under civil rights statute prohibiting conspiracies to deny equal protection." Glasson v. Louisville, 518 F2d 906, 1000 (1975), US App 6th Dist.

"There is no question that the government and (its agents), disagreeing with (plaintiffs') conclusions or methodology of (plaintiffs' expression of their opinions or beliefs), were free to publicly state their position. But (selectively applying regulations against them with the intent to suppress the expression of those beliefs) based on that disagreement is quite a different matter. It is not a public statement of the defendants' position; rather it is a punitive action by (the administrative arm of Government) against individual(s). If, as alleged, the Government and (its agents) conspired to punish (plaintiffs) because they objected to (their beliefs, or the expression of their opinions), their conduct would be not only unprotected, but would itself be prohibited by the First Amendment." (Reuber v. USA, 750 F2d 1058 (1985).)

One of the more serious charges made by plaintiff is that defendants have made false representations to the press which have had the intent or effect of alienating him from certain segments of the public. Although counsel references the arrest that accompanied one of the occasions upon which plaintiff alleges the Secret Service released defamatory information to the press, he makes no mention of those releases (see Federal Defendants Motion for Summary Judgment, filed August 29, 1986, at Ex. 1, COMPARE Tr. Ex. 20, 21, and 22).

Plaintiff has leveled a barrage of allegations.

In response counsel has made certain representations which, in repetition, cannot be allowed to escape serious consideration as to the good faith in which they were made. (i.e., that Lindsey had "nothing to do with enforcing the regulations," Transcript, June 25, 1986 in this matter, at ___; "David Harley was tried, and convicted for stealing the camera"

(Memorandum of Law in support of Defendant Lindsey's Motion to Dismiss or for Summary Judgment ("Lindsey's Law"), footnote 2, at 8), etc.1/ In fact, as noted (IID, para. ), defendant Lindsey was not, as counsel would have us believe (Lindsey's Law, ftn. 2, page 8), totally uninvolved with the episode of June 6, 1984. (See IID, para. ___.)

Depositions taken in this case would indicate that defendants will deny their apparent regulatory scheme was motivated by official (administrative) opposition to the message expressed by plaintiff. Those denials, however, engender direct contridictions of earlier testimony made by defendants or their agents. For example:

In his deposition on August 22, 1986 defendant Robbins claimed that he could only recall being on the scene of two arrests involving plaintiff, both of which involved incidents in trees (Tr. B para 46).

In his deposition on November 30, 1983 defendant Robbins could recall being on the scene of plaintiff's arrest on March 11, 1983 (Tr. B )

In his testimony of September 16, 1982 officer Wolz indicated that defendant Robbins was on the scene of palintiff's arrest on June 17, 1982 (Tr. B ).

(1) Notwithstanding counsel's optimistic representations, David Hurley, that ~unnamed Park Service employee," had the charges against him dropped. (see Issues In Dispute (IID), filed August 27, 1986, para ).

(2) Plaintiff is aware of involvement on the part of defendant Lindsey, and one of the purported "investigative reports" to which counsel refers (but does not include as an exhibit) attests to defendant Lindsey's personal proximity to the events in question on June 6, 1984. (see IID, para. 1).

(3) Plaintiff alleges that on June 4, 1984 he, and his associates were assualted, had their NPS permitted property destroyed, had signs destroyed, had literature seized and destroyed, suffered arrest without probable cause, and the intentional delay of presentment to the court, had evidentary film destroyed, and had his expressive activities interfered with hampered, and disrupted by agents of defendant Lindsey, and according to Sargent Wilkins, defendnat Lindsey was on the scene.(IID, attachment 1.)

(3) This is just one occasion where it can be shown that defendant Lindsey was on the scene of similar incidents.

Memorandum Continued

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