V.                       Civil Action No. 88-3130-JHG



In opposition to the federal defendants' Motion to Dismiss, plaintiffs have submitted a large volume and variety of materials ostensibly for the purpose of injecting clarity where none has thus far been present. Rather than clarify, plaintiffs have, with one exception, succeeded only in making their claims more prolix, more confusing and more obscure. In the case of the one exception, plaintiffs have clarified and admitted what the federal defendants asserted in open court and in their earlier memorandum: that this case is nothing more than a newly crafted version of the same case previously twice dismissed by Judge Oberdorfer.

In exhibit 164 of plaintiffs' "Appendix Numra, Volume II", in a document entitled "Peace Release", plaintiffs advertised the January 9, 1989 hearing held in this case, stating that on that date "U.S. District Judge Joyce Hens Green [will] hear[] evidence and arguments in the current version of a four-year-old civil suit brought by the demonstrators". (emphasis added except for "civil" which was emphasized in the original). That statement


makes it clear, if it was not already, that this case is merely a reconstituted version of plaintiffs' earlier cases. Indeed, the Court need only flip through plaintiffs' numerous exhibits to ascertain that each is a filing or exhibit from one of those earlier cases. Apparently not happy with Judge Oberdorfer's resolution of their earlier suits, plaintiffs now proceed on two fronts—in the Court of Appeals and this Court—in an effort to obtain the relief they seek, This Court should rebuff those efforts and dismiss this action. 1/

Turning to the specific arguments advanced by the federal defendants in support of dismissal, it is obvious that plaintiffs do not traverse materially any of the federal defendants' points. Indeed, as to most points plaintiffs offer almost no response. First, plaintiffs' response to the common law tort claims argument—that the United States must be sued pursuant to the Federal Tort Claims Act ("FTCA") in order to recover any damages —is the curious statement that "[t]his action does not sound in tort" but rather "is unmistakably a Bivens action." Plaintiffs' (Redacted) Response to Federal Defendants' Motion to Dismiss (hereinafter "Pls' Resp.") at 18. As the federal defendants explained in their earlier memorandum, all common law tort claims asserted by plaintiffs—assault, battery, false arrest, defamation, etc.—cannot be advanced against any person or ______________________________

1/ In the Court of Appeals matter, the federal appellees have now moved for summary affirmance. Additionally, six of plaintiffs' eleven separately noticed appeals have been consolidated under the lead number 88-5367 (D.C. The remaining five appeals have been dismissed by the Court of Appeals.


agency; only the United States is a proper defendant. And even to the extent the United States is sued, which it is not in this case, administrative exhaustion is required. Because plaintiffs have not undertaken these requisite steps, dismissal of the common law tort claims is required. 2/

Second, plaintiffs do not discuss the heightened pleading standard or respond to the federal defendants' assertions that plaintiffs have failed to meet the standard. Arguably, plaintiffs' submission of mass materials since the filing of defendants' motion was done in an effort to meet the standard. If so, the effort has failed. Despite the bulk of the materials submitted--again most of which were before Judge Oberdorfer--the plaintiffs have not delineated with specific facts "the 'clearly established' rights they allege to have been violated. . .with precis[ion]". Martin v. Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987), reh. denied, 833 F.2d 1049 (D.C. Cir. 1987). Instead, the bulk of plaintiffs' memorandum and other materials is devoted to a recitation of plaintiffs' version of events culminating in the promulgation of federal regulations concerning the White House sidewalk and Lafayette Park. Even if plaintiffs' version is ____________________

2/ As the federal defendants noted in their previous memorandum recent amendments to the FTCA require the Attorney General or his delegate to certify that the federal official sued for common law torts acted within the scope of their employment in order for that individual defendant to come within the coverage of the FTCA's amendments. Although we had expected the certification process to be in place by now, that has not yet occurred. Consequently, the individual federal defendants have not yet been certified as acting within the scope of their authority although we have every reason to expect that such certification will occur when the implementation process is in place. We will advise the Court as soon as this occurs.


accepted as true, it nevertheless falls short of meeting the heightened standard.

Third, apart from the foregoing, plaintiffs have not established a 42 U.S.C. 1985(3) violation. As the federal defendants explained in their earlier memorandum, a five-part test must be met by plaintiffs and here they have not met that test. Plaintiffs respond only that their actions in Lafayette Park were the result of religious inspiration and that the federal defendants acted with animus in enforcing the regulations against plaintiffs. Pls. Resp. at 18-20.

These arguments should be rejected. Plaintiffs cannot hide behind a conclusory assertion of religious beliefs in this case. Parties asserting such a claim have the burden of showing the challenged activity is religious in nature and that the challenged regulation infringes upon those religious beliefs or practices. Abington School District v. Schempp, 374 U.S. 203, 233 (1963); Wilson v. Block, 708 F.2d 735, 740 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983). The Court must then determine whether plaintiffs' actions or ideas constitute a religion, since "the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972); Africa v. Commonwealth of Pennsvl- vania, 662 F.2d 1025, 1020-34 (3d Cir. 1981); Founding Church of Scientology v. United States, 409 F.2d 1146, 1160 cert. denied, 396 U.S. 963 (1969).

In this case, plaintiffs have not met their initial burden.


They have offered nothing in this case other than conclusory and self-serving affidavits to demonstrate that their beliefs are in fact religious in nature. And plaintiffs have made no connection between their beliefs and their activities in Lafayette Park. Moreover, even assuming that an anti-nuclear vigil, or sleeping on the ground, might be viewed as religious acts, it is inconceivable that Lafayette Park has a special religious significance to plaintiffs, requiring them, as part of their religion, to camp or protest there. Obviously the only significance of Lafayette Park to plaintiffs is in terms of the communication of their anti-nuclear views. But that is not a matter of religious significance. Rather, it is a matter of freedom of speech significance which the Supreme Court, in Clark v. CCNV, 468 U.S. 288 (1984)r has already held is far outweighed by the substantial government interest in preserving and protecting Lafayette Park. Because plaintiffs have failed to meet their burden and made no connection between their beliefs, even if religious, and their activities in Lafayette Park, this Court should reject plaintiffs' assertion that they have stated a claim under 42 U.S.C. 1985(3). 3/ _______________________

3/ Plaintiffs' religion is in any case newly found, Despite the numerous arrests between 1981 and 1988 of William Thomas and his cohorts for their activities in Lafayette Park and on the White House sidewalk, religious belief was never asserted as a basis for their actions until early 1987, Then at a hearing before Judge Richey on April 23, 1987, in which the Thomases, Galindez, Semple (a.k.a. "Sunrise") and Joseph were being prosecuted for camping in Lafayette Park, William Thomas asserted for the first time that he had acted on the basis of "sincerely held religious beliefs." The others then joined Thomas in this assertion. On that basis Judge Richey dismissed the criminal information brought against the five defendants (now plaintiffs in this action). See United States v. Galindez, et al., Cr. Nos.


Fourth, plaintiffs offer no basis for their assertion that the President can be sued other than the predictable averment that the President is not above the law. Clearly that argument completely ignores the federal defendants' arguments regarding now former President Reagan's immunity from suit.

Fifth, plaintiffs offer no response to the federal defendants' service arguments and say little about the statute of limitations argument except that the so-called "conspiracy" has been "ongoing" and thus falls outside the scope of the statute of limitations. Pls' Resp. at 17-18. Apart from the fact that plaintiffs have failed to demonstrate any conspiracy, ongoing or otherwise, they offer no basis for their conclusory claim that the conspiracy is ongoing or that it is thereby saved from the statute of limitations. Judge Oberdorfer has already correctly rejected these claims and this Court should do likewise. Thomas v. News World Communications, 681 F.Supp. 55, 72-73 (D.D.C. 1988).

Sixth, plaintiffs offer no response to the federal defendants' immunity claims other than a paragraph about moving to the Ellipse which, quite frankly, makes no sense. Pls' Resp. at 21. As the federal defendants asserted in their earlier memorandum, under the well-recognized standards of qualified _____________________

(ftn. continued) 87-60 through 87-64, (D,D.C, April 23, 1987).

The Government appealed and moved for summary reversal. On September 22, 1987, the Court of Appeals granted that motion and reinstated the information. No. 87-3041 (D,C. Cir. Sep. 22, 1987). On remand, Judge Richey conducted a trial and convicted the Thomases, Semple and Joseph. See Fed. Defs' Ex. 5. The Thomases' appeal of that conviction remains pending in the Court of Appeals. Nos. 88-3015, 88-3023.


immunity, plaintiffs have failed to demonstrate any violation of clearly established law by the federal defendants and thus each individual federal defendant is entitled to immunity from suit. See Anderson v. Creighton, 107 S.Ct. 3034, 3038 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Seventh and finally, plaintiffs utterly fail to address the federal defendants' arguments about the constitutionality of the regulations and the justification for the actions of the Inaugural Committee. Other than statements that the federal defendants have misconstrued plaintiffs' arguments, plaintiffs offer no reason for this curious failure to address what the federal defendants properly perceived as key aspects of plaintiffs' complaint. In light of this failure on the part of plaintiffs, it appears that they no longer contest those points. Even if they do, however, the Court should reject plaintiffs' challenge for the reasons previously argued by the federal defendants.

In summary, it is now clear that this case is yet another drive by Thomas and the others down the same litigation road already worn out by plaintiffs. As we have explained at length, the plaintiffs cannot continually pursue the same claims through the filing of new lawsuits. 4/ Although plaintiffs assert with some emphasis that "the issues of broad public concern - Peace _______________________

4/ Although the federal defendants do not seek such relief in this case, if plaintiffs at some point file yet another action raising these claims yet again, the federal defendants may at that time seek an injunction against plaintiffs to prevent them from filing these suits absent prior court approval. See Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985).


through Strength versus Peace through Reason" have never been addressed by the Government, Pls. Resp. at 9, if that is what this case is about then plaintiffs need to try the political arena. For those kinds of political questions are particularly ill-suited for resolution by the Courts, See e.s, Goldwater v. Carter, 444 U.S. 996, 997-98 (1979).

For each of the foregoing reasons, as well as for the reasons previously submitted and argued to the Court, this matter should be dismissed by this Court with prejudice.

Respectfully submitted,
United States Attorney

Assistant United States Attorney

Assistant United States Attorney



I hereby certify that this 27th of January, 1989. I sent one copy of the foregoing Reply Memorandum via first class U.S. mail to:

William Thomas
1440 N Street, N.W. #410
Washington, D,C. 20005

Arthur Burger, Esquire
Assistant Corporation Counsel
Third Floor, District Building
1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(signed) Michael L. Martinez

Assistant United States Attorney
Room 4126 Judiciary Court
555 Fourth Street, N.W.
Washington, D.C. 20001
(202) 272-9195


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