MARY HUDDLE, et. al., Plaintiffs, v. Civil Action No. 88-3130 Judge Joyce Hens Green RONALD WILSON REAGAN, et. al., Defendants.
1/ In pertinent part, 36 CFR 7.96 (g)(1) provides:
"(g) Demonstrations and Special Events
(l) "The term 'demonstration' includes demonstrations, ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views ... which has the effect, intent or propensity to draw a crowd or onlookers."
2/ In pertinent part 36 CFR 7.96 (g)(2)(i) provides
"Demonstrations involving 25 persons or fewer may be held without a permit provided that the other conditions required for the issuance of a permit are met...."
"Over the course of their vigil, plaintiffs and federal law enforcement officials have engaged in an ongoing confrontation arising from plaintiffs' exercise of First Amendment rights. At the core of this chronic struggle lie several Department of the Interior regulations." Thomas v. United States, 696 F. Supp. 702, 704, compare, Comp. para. 67.
"Plaintiffs have alleged a pattern and practice of discriminatory regulatory enforcement which cannot be permitted by a democratic state. Once the predilections and discretion of executive agents or policy makers is allowed to replace the present rule of law, the constitutional form of government which presently guides this country can only cease to exist. It falls to the judicial branch to safeguard the democratic institution against patterns and practices of standardless regulatory enforcement which would have the effect of placing agents or policies of the executive branch above the law." Plaintiffs, Motion for a Preliminary Injunction and Temporary Restraining Order, filed November 23, 1988.
amounts of literature as tools of communication. Comp. para. 28.
In the past defendants have uttered public insinuations that plaintiffs' "signs ... have substantially tipped the delicate balance between casual use and the exercise of First Amendment
rights that has existed in Lafayette Park for decades." Exhibit 4, pg. 7557, emphasis added. Because defendants' insinuations have avoided the "exacting scrutiny" (see Veleo, 424 US 1 (1976) and White House Vigil v. Clark, 746 F.2d 1518, concurring Opinion at 1551, infra) merited by the facts of this case, plaintiffs have been forced to live under the judicial assumption that defendants' insinuations are accurate.
Video @ 000:00 - 21.00.
"Congress shall make no law respecting the establishment of religion, the free practice thereof, freedom of speech, freedom of the press, or the right of the people peaceably to assemble and to petition the government for redress of grievances."
A long line of cases speaks to the importance of expressive activities being unhampered by police force and misconduct.
"It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.... The right to speak freely and promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes." Terminiello v. Chicago, 357 U.S. 1, 4 (1949), see also, e.g., United States v. Eichman, 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989); Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US 131 (1961); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969) ; Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, 460 (1980); Gregory v. Chicago, 394 U.S. 111, 112 (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940); Lovell v. Griffin, 303 3 U.S. 44 (1938).
"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." United States v. O'Brien, 391 U.S. 367 at 377 (1968).
crush the harmless exercise of belief and expression.
"The right of the people to be secure in their persons ... property, papers, and effects, against unreasonable searches and seizures shall not be violated...."
"(V)iolation of a (constitutional guarantee) by a federal officer under color of his authority gives rise to a cause of action for damages." Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
"No person shall ... be deprived of life, liberty, or property, without due process of law."
In having deprived plaintiffs of their signs and thus the liberty to attract a crowd or onlookers (as provided in 36 C.F.R
7.96(g)(1)) -- usually without making any arrest, issuing any citation or property receipt -- the U.S. Park Police actions of January 24 and 26, 1991, February 2, 3, 11, 13, 21, 22 and 23, 1991, lacked any legal authority and amounted to theft and harassment in violation of the Fifth Amendment. Video @ 0.00 22.30 -- "sign seizures" -- and Comp. pares. 13, 16, 17, 22, 23, 25, 36, 37, 39, 58.
"Plaintiffs thus raise a serious vagueness challenge to the regulations. Regulations of the sort at issue here are criminal laws. ()
"In order to conform to the Fifth Amendment, a criminal provision must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."' Thomas v. United States, 696 F. Supp. 702, 706, citing Kolender v. Lawson, 461 U.S. 352, 357, see also cases cited at Thomas, id. emphasis in original.
False Imprisonment Under Color a C.F.R. Violation
have routinely incarcerated plaintiffs and others closely associated with plaintiffs, whose identities were previously known to them, for alleged C.F.R. violations in situations where the most expedient, procedurally correct, and just resolution would have been to simply issue a C.F.R. Citation Violation Notice. E.g., Comp. pares. 24, 27, 42, 44. Video @ 3.05-5.00, 5.00-7.50, see also 108.48-114.17. These incarcerations served no purpose other than to disrupt the exercise of First Amendment activities in the park by effecting their detention without due process.
"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."
"(U)se of the streets and public places has, from ancient times, been a part of the privileges' immunities, rights, and liberties of citizens." Hague v. C.I. O., 307 U.S. 496, 515 - 516.
that defendants know or should know,
"(First Amendment) rights ... certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence.... " Brown v. Louisiana, 383 U.S. 131. See also United States v. Abbey, 534 F.2d 918 (DDC 1976).
"Plaintiffs maintain that they sincerely want to conduct their demonstration within the boundaries of legitimate time, place, and manner restrictions.... Indeed, plaintiffs proffer evidence of persistent correspondence to this end...... These letters reveal a sustained effort by plaintiffs to ascertain the precise meaning and scope of the Lafayette Park regulations in order to avoid both criminal sanctions and the concomitant interruption of their expressive demonstration.
"Plaintiffs' uncertainty centers on two particular elements of the Park regulations: the ban on 'camping' codified at 36 C.F.R. 7.96(i) and the ban on the storage of personal priority, contained within the ban on camping." Thomas v. United States, 696 F. Supp. 702, 707.
symbolic action speaks to their commitment.
to plaintiffs' legitimate First Amendment exercise.
"The evidence of an affirmative link between the occurrence of various incidents of police misconduct could indicate the adoption of a plan or policy by government officials." Rizzo V. Goode, 423 US 362.
"In Kolander v Lawson, 461 U.S. 352, the Supreme Court observed that, although the vagueness doctrine 'focuses both on actual notice to citizens and arbitrary enforcement,' its most important aspect 'is not actual notice, but ... the requirement that a legislature establish minimal guideline to govern law enforcement."' Thomas v. United States, 696 F. Supp. 702 at 706.
plaintiffs fear that, barring intervention from this Court, their bodies will also suffer injury in person or liberty at the hands of defendants or their agents. Comp. paras. 46-58.
"36 C.F.R. (g)(5)(x)(A) and (B), formerly codified at 36 C.F.R. 50.19(e)(11)(12), is both unconstitutional, having been promulgated under false pretenses and for unconstitutional reasons, and has been unconstitutionally applied. See Amended Complaint, filed November 23, 1988, para. 42, Summarization of Complaint, filed November 21, 1989, e.g. pares. 31, 54, 63, 67; Plaintiffs' Memorandum in Support of their Application for a Temporary Restraining Order and Motion for Preliminary Injunction, filed November 21, 1989, pages 6-9; Plaintiffs' (Redacted) Response to Federal Defendants' Supplemental Motion to Dismiss, filed January 17 1989, page 15; Complaint, filed September 30, 1988, pares. 20, 56, 79." Plaintiff Ellen Thomas' Motion to Supplement the representation of Plaintiffs' Constitutional Claims Against the Regulations at Issue, filed December 13, 1989.
intimidated plaintiffs under color of a regulation so broad that it can sweep a small cardboard stationery box within the word "structure," and can accommodate the seizure of a sign because "it's not a sign" (Video @ 11.55 - 21.00), the Court should certainly entertain a challenge.
"the majority of the demonstrations (then) occurring in Lafayette Park (were) long-term vigils which continue(d) 24 hours a day. When one of the participants of these demonstrations departs the area, another demonstrator takes his or her place in watching the group signs. Therefore, a regulation prohibiting unattended signs would be of limited use in Lafayette Park." Exhibit 21.
3/ In pertinent part, 36 CFR 7.96 (g)(x)(A)(4) provides that: "the term 'structure' does not include signs..."
"(C)ourts must be especially careful in scrutinizing (time, place, and manner) restrictions on first amendment expression that the government seeks to justify on eye-pleasing grounds.... Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others. to be more moderate and decorous - and, in consequence, less effective - in conveying their message." White House Vigil v. Clark, 746 F.2d 1518, concurring Opinion at 1551; Clark v. Community for Creative Non Violence, 468 U .S. 288, dissenting Opinion at 315. City Council v. Taxpayers for Vincent, 104 S. Ct. 2118, majority Opinion at 2139, 2141.
"that the defendants have engaged in a concerted effort to organize and execute ... an intricate regulatory scheme, with the intent to ... evade certain constitutional safeguards provided for in the Administrative Procedures Act of Title 5 USC ... and to interrupt the expression of plaintiffs' moral opposition to the defendants' personal power play of Peace Through Strength by harassment, threats, intimidation, defamation, or imprisonment. As a direct and proximate result of the alleged scheme plaintiffs have collectively suffered ... assault and false arrest, false imprisonment, seizure of property, intentional infliction of emotional distress, as well as deprivation of due process and the exercise of their freedoms of religion, communication, and association...." Original Complaint, October, 1988, pg. 5.
regulations, for the purpose of justifying plaintiffs' persecutions, and suppressing their religious practices and communications.
"To demonstrate the existence of a conspiratorial agreement it must simply 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." Hobson v. Wilson, 737 F.2d 1, 51, 52, see also Hampton v. Hanrahan, 600 F.2d at 621; Hoffman-LaRoche v. Greenberg, 447 F.2d 872, 875 (7th Cir.).
(a) have specifically addressed "two people (Concepcion Picciotto, Fed. Reg. March 5, 1986, pgs. 7557, 7560 A Exhibit 4A, and Thomas (see Exhibit 16, Complaint, October, 1988, pare 22) who had been in the park since June 1981,"
(b) have repeatedly, and falsely, suggested that these two people and "a few demonstrators" are "responsible for the problems" in the park,
(c) have repeatedly pursued regulatory prohibitions to pressure plaintiffs to move their constitutionally protected continuous presence to "the Ellipse" (Exhibits 4, 17, 18, 19, 22, compare Exhibit 20), and
(d) plaintiffs did not move their continuous presence to the Ellipse (Exhibits 2, 3, 5, 9, and 22); and
"We see no substantial basis for holding, as the United States would have us do, that executive officers generally may with immunity discharge their duties in a way known to them to violate the United States Constitution." Butz v. Economou, 438 U.S. 478.
dissent from President Bush's party line of peace-through-carpet- bombing Iraq. Comp. para. 7.
"(T)here are some purported interests - such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas -that are so plainly illegitimate that they would immediately invalidate the rule." City Council v. Taxpayers for Vincent, 104 S Ct. 2118, 2128.
4/ 36 CFR 2.12 provides, in pertinent part:
"The word (irreparable) means that which cannot be repaired, retrieved, put down again, atoned for.... Grass that is cut down cannot be made to grow again; but the injury can be adequately atoned for in money. The result of the cases fixes this to be the rule: the injury must be of a peculiar nature, so that compensation in money cannot atone for it...." Gause v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 728 (1857).
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times v. United States, 427 US 763." Elrod v. Burns, 427 U.S. 347, 373 (1976).
"Freedom of conscience and freedom to adhere to such religious ... form of worship as the individual may choose cannot be restricted by law ... thus the First Amendment embraces two concepts - freedom to believe and freedom to act." Cantwell v. Connecticut, 310 U.S. 301, 303, see also Walz v. Tax Comm., 397US 664 (1970); Sherbert v. Verner, 374 US at 404; Pierce v. Society of Sisters, 268 U.S. 534; Murdock v. Pennsylvania, 319 U.S. 105; Wisconsin v. Yoder, 406 U.S. 230.
(1) "(t)he Government stated that it had 'no interest in prohibiting any of these defendants from sleeping _ the park' and that its only interest ... was in 'enforcing the regulations'" (Exhibit 15), and (2) "The defendant and others who are maintaining vigils in Lafayette Park .... 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, to 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." United States v. Sunrise, 702 F. Supp, 295, 299.
"It is not consistent with the policy of our political institutions, or the manners of the people of the United States, that any ministerial officer, having public duties to perform, should be above the compulsion of the law, in the exercise of those duties." Marbury v. Madison, 1 Cranch 149 (1803).
arresting plaintiffs for CFR violations, or applying 36 CFR 2.12 to silence their drums.
/s/ W. Thomas c-0
William Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001
/s/ Ellen Thomas
Ellen Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001
Brett (Song) Hamrick, pro se
P.O Box 27217
Washington, D.C. 20038
/s/ Concepcion Picciotto
Concepcion Picciotto, pro se
P.O. Box 4931
Washington, D.C. 20008
/s/ Scott M. Galindez
Scott Michael Galindez, pro se
P.O Box 27217
Washington, D.C. 20038