MARY HUDDLE and PHILIP JOSEPH, et. al., ) ) Plaintiffs, Pro Se ) ) CA 88-3130-JHG versus ) ) Judge Joyce Hens Green RONALD WILSON REAGAN, et. al., ) ________________________________________)
"the confluence of plaintiffs' continuous presence in the White House/Lafayette Park area" are not, in fact, a post hoc, ex post facto, administrative wrecking ball, conceived -- for the most part -- and maliciously employed to batter plaintiffs' persons and "property," for the purpose of suppressing, disrupting and ultimately terminating what defendants knew, or should have known, to be plaintiffs' Constitutionally-protected exercise of religious beliefs, expression of beliefs, free association with the public at large, and their right to remain harmlessly in a public place unmolested by police force.
"(The Circuit was) left, then, only with the puzzle of why the Thomases sought to discern the scope of the regulation yet repeatedly ran afoul of it. () (T)he Thomases have always believed that they have not over the years engaged in camping ... and that they have in accord with their deeply held religious beliefs given up all living accommodations. () It may be unfortunate that the Thomases' deeply felt convictions have led them to persistent behavior running afoul of the regulations." Id. PAGES 21, 22.
scheme," 2) to determine whether or not the answer to the Circuit Court's puzzle is that the Thomases only appeared to be "running afoul of the clear import of the regulation," even though they had "sought to discern the scope of (the regulations)," because the defendants manipulated both words and facts to make it appear that the Thomases had "run afoul of the clear import of the regulation," and 3) to effect justice.
"Whether this is all steam, or whether there is some substance depends on the proof offered either at trial or on motion for Summary Judgment demonstrating that there is no controversy." A.H. Richland, Co. v. Harper, 302 F.2d at 326.
l/ Of course, defendants might believe that for some presumably masochistic reason, it is plaintiffs who are trying to manipulate the judicial system. COMPARE, e.g., Appendix E-1 thru E-7.
2/ Plaintiffs have previously visited "Exhibit 4" in a Motion to Strike, filed January 3, 1988.
3/ "This case may be one of those 'hard cases' that has high potential to produce 'bad law.'" CCNV v. Watt, DCApp No. 82-2445, decided March 9, l983, J. Mikva, concurring opinion, p. l. Writing separately, "I share Judge Edwards' concern that this case has 'a high potential to produce bad law.'" Id. J. Ginsburg, concurring opinion, p. l.
that "Peace through Love" or "Love Your Enemies," is a more constructive approach than "Peace through Strength." 4/
4/ The Complaint asserts that "(t)he motive of each plaintiff in focusing his or her energeies to the area of Lafayette park was to conform his or her actions to a similar religious discipline." (Id. para. 2l(b).) The Complaint alleges that defendants acted to "shield (defendant Reagan's) PERSONAL philosophy of Peace through Strength from critical attack" (id para 73), "for the purpose of suppressing plaintiffs in their exercise and communication of religious beliefs and principles." (Id. para. 70.)
5/ "Depending ... upon the conviction of the individual expressor to the truth of the opinions expressed, and upon the individual capacity for tolerating the frequent harassment at the hands of defendants and their agents, those who adopted my methods remained in Lafayette Park for varying lengths of time." Para. 8 of William Thomas' Declaration in Support of the Complaint.
"The defendant and others who are maintaining vigils in Lafayette Park may be eccentric. But they have stood up day and night for their beliefs in spite of repeated arrests and convictionsand the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of a city at night. Their protests have been peaceful. They are not venal criminals, and application of criminal sanctions to them puts strain on the criminal justice system. That system is designed to protect the public from crime, condemn and punish criminals, and to deter others from committing crime. The justification for condemning and punishing a peaceful protester like defendant is not immediately apparent. The effectiveness of the criminal sanction as a protection of the public or as a deterrent to repetition when applied to persons like defendant is also questionable." Ex. l39, USA v. SUNRISE, DCDC, CR. 88-235-LFO, Memorandum, filed December 8, 1988, pgs. 8, 9.
87-6l, Trial Transcript, p. l35, December l4, l987.
PLAINTIFF [then defendant]: "I have a belief, and by the most sacred principles of this country, I am entitled to hold my (belief), and, by the fundamental laws of this country, I am entitled to express my belief.... My burden seems to be that I hold an unpopular belief, and I insist on expressing it. I am viewed as a blight on society as a direct result of the manner of my expression. But, being penniless in a society which traditionally demands money for expression, there is no other manner available to me for expressing my beliefs than through my body, my voice, and crude signs in a prominent place.
"I am just doing my job. I am a critic, but criticism is not a bad thing. Criticism identifies problems. Identifying a problem is the first step toward solving it, when criticism is viewed optimistically.
"Whether or not my criticism is valid has never been at issue before this, or any other, court.... (S)hould this court sentence me to be imprisoned without ever having addressed the issue of my criticism, I fear we shall have a sorry state of affairs." Exhibit D, p. 24, USA v. Thomas CR 83-l86, sentencing transcript December 2l, l983.
DEFENDANT ROBBINS: (Reading from the Federal Register) "The regulations banning the use of parks for living accommodations are designed not to stifle First Amendment expression, but to protect undesignated parks from activities for which they are not suited and the impacts of which they cannot sustain. Shorttime casual sleeping which does not occur in the context of using the Park for living accommodations will not be affected by these regulations." PLAINTIFF(then defendant): "Were you involved in the Court process that grew out of these regulations?" GOVERNMENT: "Objection." PLAINTIFF: "The legal challenges to this regulation?"
GOVERNMENT: "Objection." COURT: "Sustained." PLAINTIFF: "I'm sorry. Could I ask the ground?" COURT: "No. Next question. It's IMMATERIAL, that's why." Ex. l34 USA v. Thomas and Thomas, D.D.C. Cr. No. 87-23l, December l4, l987, Trial Transcript, p. l60. SEE ALSO pp. 6, l54-l55.
"Plaintiffs' twenty-four-hour vigil ... takes place in possibly the most conspicuous public forum in the [n]ation.... They have engaged in a running contest with law enforcement authorities with the result, if not the intention, of attracting considerable media attention." Thomas, et al, v. News World Communications, et al, 68l F.Supp ____ (l988).
"contest" was largely malicious and manufactured or employed by defendants against plaintiffs. A trial will show that defendants have described their "problem" by various euphemisms such as "nuisance," "the situation on the White House sidewalk," "the situation in Lafayette Park," "large signs," "vague antinuke gibberish." E.g., Exs. 64-B, 64-C. Compare Exs. B-8, B-9, B-l0.
(e.g., Complaint paras. 21(h)(i) and 72(a)(b) -- defendants chose rather to cloud plaintiffs' ideas in the public's mind, by publicly demeaning plaintiffs' persons, and subjecting those persons to the force, violence, threats and intimidation of police force in an effort to crush plaintiffs' efforts to exercise and communicate their religious beliefs. SEE, Complaint, para. 20, and Amended complaint, para. 11.
"The political dynamics likely to lead officials to disproportionate sensitivity to First Amendment interests can be discerned in the background of this case.... (T)HERE ARE FACTS IN THIS CASE THAT RAISE A SUBSTANTIAL POSSIBILITY THAT THE IMPETUS BEHIND THE REVISION MAY HAVE DERIVED LESS FROM CONCERNS ABOUT ADMINSTRATIVE DIFFICULTIES AND WEAR AND TEAR ON PARK FACILITIES THAN FROM OTHER MORE 'POLITICAL' CONCERNS. (M)y intention is to illustrate concretely that government agencies by their very nature are driven to overregulate
public forums to the detriment of First Amendment rights, that content neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression, and that in this case in particular THERE WAS EVIDENCE READILY AVAILABLE THAT SHOULD HAVE IMPELLED THE cOURT TO SUBJECT THE GOVERMNENT'S RESTRICTIVE POLICY TO SOMETHING MORE THAN MINIMAL SCRUTINY." Clark v. CCNV, Syllabus Opinion, filed June 29, l984, dissenting opinion of Justices Marshall and Brennan, at page l6. EMPHASIS added.
"The photographs contained in the administrative record depict the activities of certain long term demonstrators 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 long term demonstrators." Ex. 69, ERA v. Clark, USDC 83-l243, Memorandum filed April 26, l984, p. ll.
"In light of (clearly enumerated) facts, plaintiffs claim that a memo from Secretary Watt, and subsequent contacts between Assistant Solicitor Robbins, a principle drafter of the regulations, and the Secretary (of Interior) and the WHITE HOUSE take on added significance. On January l3, l983, a memo from Secretary of Interior James G. Watt requested a 'briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse.' [Plaintiffs' instant Complaint Exhibit 2.] When Assistant Solicitor Robbins spoke to Secretary Watt about the development of the regulations in March l983, the Secretary told Mr. Robbins to 'keep up the good work.' Robbins Trial Transcript. (Exhibit 48, p. 50, ll2, December l3, l983.) There was also contact with the White House to inform White House counsel of the status of the regulations. 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 coincidence.
"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."
"The issue for decision is not factual, it is legal." ERA v. Clark, 746 F.2d l427.
However, the Court noted:
"On the circumstances existing during the relevant time here, a strong argument could have been made that a regulation banning all demonstrations on the White House sidewalk and in Lafayette Park would have been unconstitutional. But the institution of a total ban is not the approach the Park Service took....
"The regulations also clearly leave open ample alternative channels of communication.... Should (demonstrators) find the government's regulations too restrictive THEY CAN ALWAYS CARRY THEIR DEMONSTRATION IMMEDIATELY ACROSS PENNSYLVANIA TO LAFAYETTE PARK." Id. p. l528. EMPHASIS added. COMPARE Exhibit l3l, p. 7560; inter alia. p. l5.
Exhibit 9 reflects, Judge Richey based his opinion, quite understandably amid the tangled thicket allegedly prestidigitated by the defendants, on two misapprehensions:
I) "The rule protects the aesthetics of Lafayette Park by prohibiting persons from abandoning or not attending their signs." (Defendants' Exhibit 9, pg. 2, COMPARE, Plaintiffs' Ex. 126), II) "The rule is also tailored to serve the substantial interest in the security of the White House, high government officials and the public."
they now petition this Court -- will reveal, once the exaggeration, misrepresentation, and falsehood is removed, about all that remains is:
"IN JULY OF l985 THERE WERE (quite a few) SIGNS IN LAFAYETTE PARK.... ONE OF THOSE SIGNS INDICATED THAT ... TWO INDIVIDUALS ... HAD BEEN IN THE PARK SINCE JUNE 1981."Federal Register, p. 7557, March 5, l986. (EMPHASIS added.)
"In addition to the PROBLEM OF A FEW INDIVIDUALS ... the National Park Service received at least twentyfive complaints, most requesting some action concerning Lafayette Park...." Id. (EMPHASIS added.)
"The National Park Service did consider closing the park to demonstrators at night. However, this limitation would preclude continuous vigils in Lafayette Park.... (T)HE NATIONAL PARK SERVICE DOES NOT WISH TO PRECLUDE THEM ... UNLESS OTHER MEASURES ARE INSUFFICIENT." Id. 7559. (EMPHASIS added.)
"The National Park Service ... also received A PETITION WITH SEVERAL THOUSAND SIGNATURES IN OPPOSITION (to the proposed regulation)...." Id. 7560. (EMPHASIS added)
"The American Civil Liberties Union 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 affidavits of Concepcion Picciotto, a long time demonstrator, that allege ... the Park Service is allowing private citizens to destroy demonstrators' signs...." Id. (EMPHASIS added)
"IF THE REGULATIONS ... HAVE A GREATER IMPACT ON ONE GROUP OF DEMONSTRATORS, IT IS ONLY BECAUSE THOSE DEMONSTRATORS ... [have] LARGE SIGNS." Id. (EMPHASIS added)
"Some commenters also suggested that regulations on the White House sidewalk make Lafayette Park an even more important site for demonstrations directed toward the White House. IT IS TRUE THAT RESTRICTIONS WERE PLACED ON THE SIZE, PLACEMENT AND CONSTRUCTION OF SIGNS USED ON THE WHITE HOUSE SIDEWALK IN JULY OF 1983.... THE IMPOSITION OF THOSE REGULATIONS APPEARS TO BE ... THE REASON FOR THE MOVEMENT OFLARGE SIGNS TO LAFAYETTE PARK." Id. (EMPHASIS added)
"Many of the commenters opposing the proposed regulation ... take the position either that THERE IS NO PROBLEM IN LAFAYETTE PARK OR that THE PROBLEM CAN BE HANDLED UNDER EXISTING REGULATIONS. The ACLU, for example, stated that the Park Service has misrepresented the situation and that visitors to the park find the ongoing demonstrations to be a 'thrilling example of their democracy in action.'"... Id. (EMPHASIS added)
"SEVERAL COMMENTERS ... SUGGESTED A PUBLIC MEETING OR PRIVATE NEGOTIATIONS CONCERNING THE RULEMAKING EFFORT.... THIS RULEMAKING HAS BEEN THOROUGHLY ... DISCUSSED IN THE MEDIA, THROUGH EDITORIALS, ARTICLES, AND LETTERS TO THE EDITOR, AND ... COMMENTS HAVE BEEN RECEIVED FROM ALL SIDES
OF THE QUESTION." (EMPHASIS added) Id. 7563. (EMPHASIS added.) Compare e.g. Exhibit lll-C, p. l.
"The final regulations ... leave open ample avenues of communication ... such as THE ELLIPSE...." Id. 7560. (EMPHASIS added.)
"It is not easy to draw the lines established in the final rules." Id. 7566.
Which is why:
"One 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 US l47. And "In cases like this, where a total ban is imposed on a particularly valuable method of communication, a court should require the government to provide tangible proof of the legitimacy and substantiality of its aesthetic objective." Members of the City Council v. Taxpayers for Vincent, l04 S.Ct. 2l4l.
"The (government) might be pursuing either of two objectives, motivated by two very different judgments. One objective might be the elimination of 'visual clutter,' attributable in whole or part to signs posted on public property.... The second objective might simply be the elimination of the messages typically carried by the signs.... The first objective is lawful ... the second is not. Yet the (government) might easily mask the second objective by asserting the first and declaring the signs constitute visual clutter. In short, we must avoid unquestioned acceptance of the (government's) bare declaration of an aesthetic objective lest we fail in our duty to prevent unlawful trespasses upon the First (Fourth, Fifth, Ninth, and Fourteenth) Amendment)s)." Members of the City Council v. Taxpayers for Vincent, l04 S.Ct. 2l39 (parentheses substituting).
THE COURT: "My problem is what to do with him, really. My problem is what to do with him.
"Well -- this case you can take somewhere else. I don't know what to do with these people.
"You don't want to put them in jail, huh?" THE GOVERNMENT: "We are going to ask for that, Your Honor." 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." Ex. 36, p. l2. 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 one.
"Point two, 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...." (p. 9.) "I suppose I have to put him on probation." (p. l3.) THE GOVERNMENT: "Magistrate Burnett did the same thing." ... Id. 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, wherever you want to draw the line.
"...(H)e is trying to comply with these regulations, and as you make them and as he gets arrested for them, okay, whatever you say do, he'll do." Ex. 37, p. ll. GOVERNMENT: "He plays games." THE COURT: "Well, I don't know who is playing a game really." Id., p. 8. GOVERNMENT: "We are asking that he be incarcerated." THE COURT: "To do what? To get away from there?" GOVERNMENT: "To comply with the law." Id. p. 9. THE COURT: "If I put him in jail for ten or fifteen years, you might solve your problem. But you are not going to solve your problem by putting him in jail. You are not going to solve anybody's problem with that, his or ours." Ex. 37, USA v. Thomas, CR 82-358, Sentencing Transcript July 5, l982. Supra. p. 7.
until page 22 of their Memo. However, that hiding place had been previously demolished on page five of their Memo:
"In Bell v. Hood, 327 US 670 (1946) we reserved the question whether violation of [a Constitutional guarantee] by a federal officer under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does." Bivens v. Six Unknown Federal Narcotics Agents, 403 US 388 (1970) [brackets substituting].
There can be no question that plaintiffs believe themselves to be acting on religious inspiration (e.g. Thomas' Declaration in Support of the Complaint at para. l), yet Mr. Martinez mischaracterizes the effort as "political." (Compare Complaint, para 80.) Nowhere in his Memo does he even mention the concept of religious persecution.
This represents the "establishment of religion."
"The Court then asked the Government to specify its interest in prosecuting these defendants under the regulation at issue, 36 CFR 7.96(i) and whether it wished to respond to the defendants' motion. The Government stated that it had 'no interest in prohibiting any of these defendants from sleeping in the park' and that its only interest in this case was in 'enforcing the regulations' at issue. The Court asked the Government if it wished to offer any other reason, any piece of evidence, or wished to cross-examine any of the defendants. The Government declined to do any of these things.
"When it has been shown that an individual has acted contrary to law out of a 'sincerely held religious belief,' it is the Government's responsibility to show that it has a compelling interest in the law at issue and that it has enforced that law with the least restrictive means with respect to that religious belief. SEE wisconsin v. Yoder, 406 US 205 (1972), Murdock v. Pennsylvania, 319 US 105 (1943); see also Thomas v. Review Board, 450 US 707 (1981); L. Tribe, American Constitutional Law, Sections 14-16. The Government did not offer a scintilla of evidence to that effect. Nor did it offer a single reason sufficient in law to support a claim of compelling interest.
"Indeed, the Government did not proffer any response to
the defendants' position stated above that even remotely met the applicable legal standard." Ex. l32, USA v. Joseph, et al., DCDC Cr. No. 87-61, Order, filed April 23, l987, pgs 2, 3, Richey, J.
guidelines in Reuber v. United States, 750 F.2d 1039.
"Complaint alleging that corporate defendants were liable for writing and dissemination of letter of reprimand and resultant 'constructive discharge' of plaintiff and that individual corporate defendants were acting at direction of, or in concert with, individual federal agency officials and also alleging that such actions violated plaintiff's First Amendment rights of freedom of association, freedom of speech and privacy ... showed subject-matter jurisdiction over such corporate defendants." Reuber, 750 F.2d 1041, note 13.
"If the law was clearly established at time public employee's conduct occurred, official is presumed to have known about it and unless he can bring forward undisputed facts establishing that because of extraordinary circumstances he neither knew nor should have known of unlawfulness of his conduct, employee is not entitled to qualified immunity defense." Butz v. Economou, 438 U.S. 479 (1978).
practice, speech and assembly against -- at the hands of defendants -- treatment and conditions which would (if plaintiffs were in federal penal custody) amount to cruel and unusual punishment.
"As the regulation is drawn and administered a decision by a plaintiff, the police, or a court as to whether one of the plaintiffs is maintaining an impermissible living accommodation in the park is seldom free from reasonable doubt." Thomas, et al., v. USA, et al., DCDC Ca No. 84-3552- LFO, Memorandum, filed September 16, 1988, p. 17,
"Officer Haynes ... spoke with precision, and exactitude, and painstaking care, had selective memory ... unable to remember even testimony that he clearly specifically had given in the court hours earlier, failed to remember making, on some occasions, earlier arrests of the defendants, contradicted representations of the manner in which he inventoried the property....
"Now, the Court's ruling today does not mean that ... it has ... become unnecessary ... to reach the several most significant constitutional questions that someday, someway, 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 respectivemotions for judgment of acquittal are as to each of the defendants granted." Ex. l05, USA v. Thomas, USDC 84-255, September 25, l984 transcript at 1025; supra. p. 7.
Respectfully submitted with the prayer
that God will find this Court honorable,
January 6, 1988,
Plaintiff, pro se
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005