plaintiffs,          )
          versus                        )         CA 88-3130-JHG
                                        )     Judge Joyce Hens
RONALD WILSON REAGAN, et. al.,          )
                   defendants           )


On October 2, 1989 the federal defendants notified the court of two unpublished opinions from the Circuit Court which denied rehearing of Judge Oberdorfer's "without prejudice" dismissal. See Thomas, et. al. v. United States, 696 F. Supp. 702 at 712 (1988). See also, Thomas, et. al. v. News World Communications, et. al., 681 F. Supp. 55 (D.D.C. 1988).

The federal defendants did not suggest what, if any, significance the short, inexplicit, unpublished Appeals Court opinions should exert on the instant case. For the reasons stated below plaintiffs respectfully suggest that these and the other unpublished opinions in Thomas should have no precedential effect in this case. Nor need the published opinions of Judge Oberdorfer influence the this Court's decision.

In the past this Court has not been insensitive to concerns like truth, fair-play and the best interests of individuals in a democratic society. Now plaintiffs can only pray that this Court will honour its sacred duties as a dispassionate fact-finder, sense some injustice in the needless persecution of harmless truth seekers, recognize the need to insure equal rights under law, and insist on trying the factual issues of this case.



At best defendants' unpublished Circuit Court opinions affirm Judge Oberdorfer's dismissal "without prejudice." 1/ Hence, the Circuit Court opinions stop far short of barring further litigation.

"'A dismissal of a suit "without prejudice" is no decision of a controversy on its merits and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.' This statement of the law is found in Matthews v. Glenn, 41 S.E. 735, and is sustained, if it needs authority in support of it, in Ragsdale v. R.R. Co., 82 Miss. at 487 and Mobile County v. Kimball, 102 U.S. 691." Newburry v. Ruffin, 45 S.E. 2.d 733. 734; see also Seamster v. Blackstock, 2 S.E. 38, citing 7 Wall 107.

Thus, this Court may still view this matter through its own eyes, proceed "as if no suit had ever been brought," hear the facts, and decide who is telling the truth.


On their own the terse Appeals Court opinions in Thomas say only: dismissed "without prejudice."

"(M)ost Courts of Appeals have promulgated rules which permit them to decide cases without full opinions.... (T)he decision not to write an opinion ... only means that the decision of the Court of Appeals has no precedential value." 2 Fed. Proc, l. Ed. 656 (Sec. 3.728), see also United States v. Baynes, 548 F.2d 484.

Assuming all opinions to be well-intentioned and sincere, some opinions may still be more soundly reasoned, factually accurate, or highly principled, than other opinions. Likewise an opinion held by a minority may be better reasoned, factually valid, or principled than the common opinion held by a majority.

1/ See publication Words and Phrases for other judicial constructions and definitions of "without prejudice."


The unpublished opinions in this case fail to resolve puzzles left after published opinions. 2/ Plaintiffs urge the Court to recognize its responsi-bility to resolve the issues of material fact presented, and determine whether plaintiffs have suffered viola-tions of their vested rights.

It is settled that the "confluence (between) plaintiffs' continuous presence in the White House/Lafayette Park area (and) federal regulations has resulted in numerous arrests of (plaintiffs)." Defendants' Motion to Dismiss filed December 21, 1988, p. 4. The Complaint alleges that the "federal regulations" (Complaint, para. 20) were "intended to circumvent numerous pro-visions of the Constitution (and the APA) for the purpose of subjecting individuals to an authoritarian standard of religious, political ideals." Complaint, para. 76.

To plaintiffs' minds the most factually accurate unpublished opinion on this confluence belonged to Magistrate Burnett, who also - having heard depositions of ten government witnesses - happens to be the only jurist in a position to write anything approaching an informed opinion on the confluence at issue.

"Plaintiff contends that 'at least as early as Nov. 1981 there was a concerted effort among many different agencies within the Department of Interior to disrupt or terminate Thomas' expressive activity under color of the camping regulation....

"(P)laintiffs' principal contention is that these supervisory officials conspired among themselves, and with other federal agents and officers, in an effort to have him unlawfully arrested, harassed and intimidated in order to discourage plaintiff from continuing the

2/ Why, for instance, did J. Oberdorfer ignore M. Burnett's informed opinion and lengthy involvement in the Thomas case? Or, why did J. Oberdorfer twice hold that the Thomas case stated a claim before dismissing that claim for failure to state a claim? See Appendix Alpha filed January 17, 1989, Exhibits E-4, E-5.


free exercise of his First Amendment rights...." See Appendix filed January 19, 1989, Exhibit 3, Magistrate Arthur Burnett's Opinion, pg. 4.

"Having carefully and thoroughly reviewed plaintiff's pleadings, the magistrate concludes that there exists sufficient troublesome incidents raising genuine issues of material facts in dispute in this case, which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief. Id pg. 14.

While Giordano Bruno reasoned that the earth revolved around the sun, the majority insisted that the sun revolved around the earth. Bruno was dismissed with prejudice. When he refused to recant his reasoning the majority, defending its perception of reality, burnt him at the stake. Even under authoritarian regimes, everyone has an opinion; supposedly the difference under "democratic" regimes is that in addition to having an opinion an individual also has a right to express it. But a "right" only exists if a judicial system protects it.

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 1 Cranch 163.


"(The Circuit was) left ... 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...." United States v. Thomas, 864 F.2d 199.

It is at least conceiv-able that the solution to the Circuit Court's puzzle is that the Thomases only appeared to be "running afoul of ... the regulation," because the defendants manipulated both words and facts to make it appear that the Thomases had "run


afoul of ... the regulation."

Owing, probably, to the ineloquence of William Thomas, the Circuit Court may have misunderstood "actual reality." See United States v. Thomas, 864 F.2d at 192, see also 3rd Declaration of William Thomas filed this date.

Plaintiffs think justice would be best served if this Court just concentrates on eliciting facts to prove the relative truth or falsity (see, e.g. Plaintiffs' Motion for Sanctions filed February 8, 1989, Defendants' Reply filed February 17, 1989, and Plaintiffs' Response filed March 4, 1989) of all parties' respective claims as to the confluence of a "continuous presence" and a "regulatory scheme."


Even if the Appeals Court had been more explicit in Thomas, a different legal background exists today than did in the case before J. Oberdorfer. For example:

1. In support of his published opinion J. Oberdorfer reliedon the fact "that the regional Director of the National Capitol Parks had imposed additional conditions on all demonstrations." Thomas 696 F. Supp. 707, 708. That situation was, of course, radically altered when the Circuit Court held those very "additional conditions" to be "null and void." United States v. Picciotto, 875 F.2d 345. See Plaintiffs' Notice to the Court (filed this date), Exhibit 4, page 2.

Because Picciotto was still in litigation at the filing of this Complaint, the incidents which gave rise to that criminal charge were not included in this claim. Now, it would seem plaintiffs should be allowed - and particularly since the Appeals


Court did not - to inquire as to "whether the the Park Service had good cause to disregard APA procedures." Id page 8.

2. Defendants wrongly represented to J. Oberdorfer that all the litigation pertaining to the incidents of March 11, 1983 had been concluded with Thomas' criminal conviction and that the incident was, therefore, res judicata and collateral estoppeled. Compare Plaintiffs' Notice to the Court filed this date, Exhibit 5, United States v. Thomas 575 A.2d 1296. It is now plain to see just how wrong defendants were on that particular point. Moreover, this Complaint contends that defendants' actual "subjective state of mind" (id page 9) was the removal of signs by any force necessary with wanton and willful disregard for the rule of law. See Thomas Declaration in Support of Amended Complaint filed November 22, 1988, page 14.

The photographic story depicted at Thomas Declaration pages 3 - 18 has never received judicial review. At the criminal trial, on the theory that other photographs might be prejudicial to the government, Judge Grey only allowed photographs of the burning sign. The jury, therefore, lacked important material to help determine whether the government officials committed "the wanton and willful" act of removing all of plaintiffs' signs from the White House/Lafayette area. Exhibit 5, page 8. 3/

3. Judge Oberdorfer voiced awareness that,

"The same flaw threatens to render the camping and storage regulations unconstitutionally vague. As was true of the Kolander statute, the Park regulations 'furnish[] a convenient tool' for 'harsh and discriminatory enforcement by local prosecuting officals, against

3/ Although the case was remanded for a new trial (Exhibit 5, page 22) the government has failed to proceed further.


particular groups deemed to merit their displeasure.' ... and 'confers on police a virtually unrestrained power to arrest and charge persons with a violation.' Kolander v. Lawson, 461 U.S. 352 at 360." Thomas 696 F. Supp. 709.

J. Oberdorfer offered a plan to correct this flaw.

"Although not required to obtain a permit because their vigil involves fewer than twenty-five participants, see 36 C.F.R. 7.96(g)(2)(i), plaintiffs could pursue this avenue...." Thomas 696 F. Supp. 710

"Given the availability of this individualized inter-pretative mechanism, the Lafayette Park camping regulation, although certainly less than clear when considered in isolation, escapes the twin evils of vagueness examined in Kolander." Thomas 696 F. Supp. 711.

For a Court to require an unrequired permit to "protect" Constitutionally "protected" activity seems, if not noble, at least a novel approach. Unfortunately the government has since indicated not only that a permit (Exhibit A, hereto) won't serve to limit the discretion of police officials,

"(t)he permit has nothing to do with this case. The permit is for a demonstration. It doesn't permit him to camp." Exhibit B, hereto, United States v. Sunrise, Cr. No. 88-235, trial transcript page 72,

but also that the government will not even honor explicit guidelines from the Court:

"He would not be in violation of your probation, because those are the rules of the probation you imposed upon him, but that does not immunize him as to whether or not he violated the Code of Federal Regulations in a related matter." Exhibit B, hereto, id page 71.

4. While it seems practical for J. Oberdorfer to have noted that "(w)ere the camping regulation to stand only on its own terms, the regulation's enforcement might well be enjoined on the grounds that its proscription is too vague to serve the interest" (Thomas, 696 F.2d at 7-9), it seems impractical for him to punish a morally innocent person.

"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 convictions and 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 defendat 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." USA v. Sunrise ___ F.2d ___.

The 'beliefs" plaintiffs "stood up for day and night" have NEVER been given a fair hearing. It should be assumed that plaintiffs' beliefs are harmless and, at least a sincere attempt to "live by biblical principles and emulate() the life of Christ" (See Plaintiffs' Notice to the Court filed this date, Exhibit 2), to criminalize the harmless symbolic expression of those beliefs threatens the fabric of society.

"when the law begins to permit convictions for serious offenses of men who are morally innocent and free from fault... it becomes respectable to be convicted, (and) the vitality of the criminal law has been sapped.... The harm is wrought through the conviction itself and through the subjection of innocent men to the possibil-ity of having imposed upon them the substantial punish-ment which the law allows." 33 Col. L. R. 80.


In the interest of brevity plaintiffs mention only what they consider to be the most grievious factual oversight.

"The challenged three-foot sign attendance require-ment ... was upheld against constitutional challenge in United States v. Musser, Cr. No. 87-157.... Plaintiffs advance no argument compelling a contrary ruling in this action." Thomas 696 F. Supp. 705.

While conceding that a constitutional challenge failed in Musser, legal principles would stand against the idea that Musser


should bar Huddle.

Plaintiffs question certain aspects of J. Oberdorfer's opinions that "these (are) indisputably valid regulations" (Thomas, 696 F. Supp. 705), and that "plaintiffs advance no argument compelling a contrary ruling."

First, it is difficult to imagine a more compelling argument than that, in a democracy at least, government officials must be enjoined from acting under color of their office with the intent, as the complaint alleged, of abridging Constitutionally protected activity. Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1970), Butz v. Economou, 438 U.S. 479 (1978), Davis v. Passman, 442 U.S. 228, Hobson v. Wilson, 737 F.2d 1.

"(W)here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy." Marbury v. Madison, 1 Cranch 166, see also Gaines v. Thompson, 7 Wall 347.

Second, on September 22, 1986 an Opposition to Federal Defendants' Motion for Judgment on the Administrative record, supported by sworn Declarations, was filed in Thomas v, United States (See appendix Numra filed January 17, 1989, exhibit 113-B), alleging numerous violations of APA provisions, as well as factual inaccuracies, misrepresentations and irregularities in the Administrative Record of the sign attendance regulation. The questions raised by plaintiffs' Opposition must be considered compelling if only becuase the defendants have advanced absolutely no argument against it. Adickes v. Kress, ___ U.S ___.

The bitter fruit of the sign attendance regulation is made apparent in the Complaint at paragraph 57.

Finally, plaintiffs feel that J. Oberdorfer overstates his


case and encourages irresponsible government by saying, "the CCNV Court made it clear that the judiciary is not to ... evaluat(e) the wisdom and necessity of protective parkland regulation(s)..." Thomas, 696 F. Supp. 705.

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 161, (1803).

f. "BAD LAW"

Plaintiffs "continuous presence" is an exercise of religious beliefs. Until it is certain that plaintiffs' unexamined beliefs are totally groundless, and that the Creator does not work in strange ways, plaintiffs may or may not be "eccentric" and yet, as Judge richey hypothicated, still be "engaged in one of the noblest ventures of human kind." United States v. Galindez, et. al., Cr. No. 87-61, Trial transcript, p. 135, December 14, 1987, Appendix Numra filed January 17, 1989 Exhibit 138.

Speaking of the "camping" regulation at issue here, some Courts have recognized the inherent potential for "bad law."

"This case may be one of those 'hard cases' that has hight potential to produce 'bad law.'" CCNV v. Watt,
DCApp No. 82-2445, decided March 9, 1983, J. Mikva, concurring opinion, p. 1.

Writing separately: "I share Judge Edwards' concern that this case has 'a high potential to produce bad law.'" Id., J. Ginsburg, concurring opinion, p. 1.

Part of the CCNV Court even went a step further.

"The political dynamics likely to lead officials to a disproportionate sensitivity to regulatory as opposed to First Amendment interest can be discerned in the background of this case. Althought the Park Service appears to have applied the revised regulations consistently, there are facts in the record of this case that raise a substantial possibility that the impetus behind the revision may have derived less from concerns about administrative difficulties and wear and tear on


the park facilities, than from other, more 'political' concerns." Clark v. Community for Creative Non-Violence, 468 U.S. 315, J. Marshall, dissenting opinion.

Add to this the White House sidewalk regulation, which was never considered in conjunction with the camping regulation, the sign attendance regulation, the promulgation of which was never examined in any context whatever; and finally the fact that the public record testifies that a small group of people have suffered "repeated deprivation of liberty through arrest, seizure of property, and, perhaps most seriously, deprivation of access to an important public forum for the exercise of First Amendment rights (Thomas, 696 F. Supp. 709), and it is easy to see why,

"facial viewpoint-neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression ... in this case in particular there was evidence readily available that should have impelled the court to subject the government's restrictive policy to something more than minimal scrutiny." CCNV op. cite.

Commenting on one isolated example of the crushing effect defendants' regulatory scheme has had on plaintiffs' persons and pursuits, Judge Starr's chamber quipped, "(i)t may be unfortunate that the Thomases' deeply felt convictions have led them to persistent behavior running afoul of the regulations. That disagreement ... perhaps reflects courage, conscience or tragedy." USA v. Thomas, 864 F.2d 199.

Surely it would be sad to see the guardians of liberty act as if the justification for condemning and punishing religious exercise is immediately apparent. Supra, page 8. But not so tragic as to see that, by ignoring facts and contorting "camping" into "resting, napping, and meditating," certain Courts have "furnish(ed) a convenient tool for harsh and discrimina-tory enforcement by local prosecuting officals...." Kolander, supra.


Viewing plaintiffs' claims in the best light (Reuber v. United States, 750 F.2d 1039), the Court should ask, "once religious presecution begins how far should it permitted to go," and look either to the atrocities of the past or America's future to see a tragedy that can spread beyond these plaintiffs to to poison the heart and mind of reasoned civilzation.


On September 15, 1989 this Court held a hearing to consider an application for a temporary restraining order. The government declined to contest plaintiffs' allegations. At that time the Court held that the question of whether to restrain the Park Police from assigning Officer Berkowitz to Lafayette Park went to the merits of the entire complaint.

Despite defendants pretensions to an admirable arrest/conviction record (see Federal Defendants' Motion to Dismiss supra, page 4, compare Plaintiffs' Motion to Strike Defendants' Exhibit 4 filed December, 1988), even since this Complaint has been filed a number of arrests - including but not limited to United States v. Joseph, 88-243-JHG, United States v. Sanchez, 88-239-NHJ, and United States v. Scott Galindez Cr. No. 89-26-NHJ - have occurred without any showing of probable cause, diluting further defendants' arrest/conviction ratio.

Notwithstanding the unpublished opinions entered by the Circuit in Thomas, the fact remains that no evidentiary hearing has been held to determine whether the three regulations at issue in this case are the sum product of an deliberate scheme intended to be so "broad and ambiguous to vest unbridled discretion in the hands of the decision-making" officers on the beat to purposefully


suppress plaintiffs' free exercise of belief and expression Shuttlesworth v. Burmingham, 394 U.S. 147.

Courts may render opinions after ignoring facts and still be called "honorable." If it wishes, this Court might frame words to wash its hands of this case by virtue of unpublished opinions. Yet there is reason to counsel against that choice.

"It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.... (Courts) have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which (courts) would gladly avoid, but (courts) cannot avoid them. All (courts) can do is exercise (their) best judgment and conscientiously perform (their) duty." Cohen v. Virginia, 6 Wheat 264, 404, see also Ex parte Young, 209 U.S. 143.

Respectfully submitted,

William Thomas
1440 N Street, N. W. Apt. 410
Washington, D.C. 20038


                   plaintiffs,          )
          versus                        )         CA 88-3130-JHG
                                        )     Judge Joyce Hens
RONALD WILSON REAGAN, et. al.,          )
                   defendants           )


I William Thomas, hereby state that, on this __th day of October, 1989 I caused a copy of the foregoing Plaintiffs' Reply to Federal Defendants' Notice to the Court to be hand-delivered to the offices of Assistant U.S. Attorney Michael Martinez at Judiciary Square, 555 4th Street N.W., Washington, D.C. 20001, and Arthur Burger, Assistant Corporation Counsel, third floor, District Building, 1350 Pennsylvania Avenue, Washington, D.C. 20004.

William Thomas