MARY HUDDLE, et. al.,

          v.                     Civil Action No. 88-3130 
                                 Judge Joyce Hens Green



For years, months in the case of intervenor Love, plaintiffs have maintained a continuous presence (i.e., "vigil" 1/) in Lafayette Park. 2/ During their vigil plaintiffs have made every conceivable effort, including written requests to defendants, to establish specific guidelines within which plaintiffs could maintain their vigils without violating the camping regulation Complaint in Support of Plaintiffs' renewed Motion for Temporary Restraining Order and Preliminary Injunction in Light of Recent Circumstances (hereinafter "Comp.") para. 45.

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."

As recently as March 5, 1986 the Park Service explicitly stated that it had no desire to "preclude continuous vigils." Federal Register, Vol. 51, No. 43, page 7559.

2/ In pertinent part 36 CFR 7.96 (g)(2)(i) provides that:
"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...."


Plaintiffs are indigent; virtually the only means of communication available to them has been the use of their bodies, signs, and literature in a public park.

Plaintiffs sincerely believe that the effect of their presence and activities in Lafayette Park are not only in perfect compliance with the stated purposes of the Code of Federal Regulations, but are also in the best interests of both domestic society and humanity in general.

Throughout their presences in Lafayette Park plaintiffs have neither caused nor threatened any injury to person, nor caused any "impacts which the area cannot sustain." Comp. pares. 67, 68.

"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.

By modifying their activities in reasonable good-faith efforts to comply with what they perceive as unreasonable regulations, plaintiffs' "vigils" had, until these recent circumstances, succeeded in enduring this "chronic struggle." In pleas for reason plaintiffs have turned to the courts, seeking a civil resolution to the legal questions arising from the burden placed by defendants' enforcement of the regulations upon the exercise of plaintiffs' fundamental freedoms.

"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.

Plaintiffs believe that their pleas for reason have not been entirely futile, and that this Court's Orders of September 13, 1989, and October 12, 1990 have helped to protect a beleaguered status quo, a status quo at least as old as the First Amendment.

On December 7, 1989, when last it heard this matter, the Court noted that the questions of "camping" and "property" go to the merits of the claim. Under the circumstances then existing, the Court was reluctant to deal with those issues. Unfortunately the circumstances recently changed when defendants destroyed the fragile status quo through violence and threats of violence.

Since January 24, 1991, it has become more obvious that defendants have been playing a malicious "game." E.g., Declarations of Allen Tubis pares. 18, 19, Karin Love, para. 36, and Exhibit A (Video) @ 27.05, 102.16. Defendants' actions included inflicting greater physical and emotional suffering on plaintiffs' persons, unlawfully seizing their property, and causing their imprisonment. Defendants' alleged objective was to suppress plaintiffs' First Amendment exercise, and to deprive them of First, Fourth, Fifth and Ninth Amendment protections.

With the seizure of plaintiffs' signs and literature, in January and February, 1991, plaintiffs have effectively been denied any meaningful method of communication or expression of their views which would have "the effect, intent or propensity to draw a crowd or onlookers." 1/, supra. Essentially plaintiffs have been reduced to only their bodies and small inadequate


amounts of literature as tools of communication. Comp. para. 28.


A request for temporary relief in this Court is governed by the familiar standards of Virginia Petroleum Jobbers v. PPC, 25g F.2d 921 (D.D.C. 1958) and WMATA v. Holiday Tours, 559 F.2d 841 (D.D.C. 1977). Plaintiffs are entitled to relief if they show 1) a substantial likelihood of success on the merits, 2) irreparable injury in the absence of relief, 3) that an injunction would not substantially harm the interests of others, and 4) that the public interest would be served by granting the injunction.

We show seriatim that these criteria are satisfied.


Plaintiffs are likely to prevail on the merits of this action on four separate grounds. First, plaintiffs' activities were in reasonable compliance with the sign size regulation. Second, the application of the regulations at issue has had the direct and proximate result of violating plaintiffs' statutory rights. Third, the "camping" regulation has been arbitrarily applied against plaintiffs, without furthering any legitimate end, but with the effect of stifling plaintiffs' exercise of constitutional rights. Fourth, the sign size regulation is unconstitutional, promulgated in violation of the Administrative Procedure Act, Executive Order 12291, and as applied against plaintiffs, violates 42 USC 1985 (3).


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.

Subsequently, and for years (in the case of plaintiff intervenor Love for months) after the unscrutinized imposition of 36. C.F.R. (g)(x)(A)(B) (Exhibits 4, 19), plaintiffs began using the exact same signs -- specifically constructed to reasonably comply with the new regulation -- and a constant flow of literature regarding topical issues of broad public concern, in the same configuration, and on a daily basis in Lafayette Park.

Except for plaintiffs' signs and literature, there was nothing to attract public attention to, or interest in, plaintiffs' communication on public issues. Plaintiffs' signs and literature caused no material damage, nor injured a legitimate interest of any defendant. Exhibit 15.

Suddenly, with the outbreak of war -- but without furthering any quantifiable interest -- the exact same signs which plaintiffs had maintained in the park for years without official complaint, were seized by defendants, on occasion without any probable cause, on occasion under color of 36. C.F.R. (g)(x)(A)(B).

Plaintiffs' literature, also in reasonable compliance to all regulations, has also been seized. All without serving any identifiable interest, but with the self-evident effect of totally disrupting plaintiffs' decade-long symbolic presence.


Video @ 000:00 - 21.00.

Now defendants want to return the seized signs and literature to plaintiffs, but the unrelenting trauma of arrests, threats, and seizures has had a "chilling effect." Plaintiffs are now reluctant to bring signs and literature into the park without some guarantee that they will not again be subject to police misconduct in the process.

Plaintiffs believe it is self-evident that the signs and literature seized were in reasonable compliance with any legitimate time, manner and place restriction, and that the defendants should not have, and should not again be allowed to seize those items.

If there is any doubt as to whether plaintiffs signs and literature did indeed reasonably comply with the regulation, plaintiffs are certain that doubt would be most expeditiously resolved by simply bringing the actual signs and literature before the Court for judicial scrutiny.


The First Amendment to the Constitution provides:

"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."

Lafayette Park is a "place so vital to a healthy and robust public discourse that (it is) accorded special status under the First Amendment." ERA v. Clark, 746 F.2d 1518 at 1526, see also, e.g., United States v. Grace, 461 U.S. at 180; Hague v. CIO, 307 U.S 496, 515. 516


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).

A governmental infringement of First Amendment rights is sufficiently justified as a "reasonable time, manner and place restriction" only

"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).

The seizure of plaintiffs' signs and literature combined with defendants' arbitrary enforcement of the "camping" regulation, coupled with excessive police force to disrupt peaceable assemblies, has left plaintiffs fearful to return signs and literature to Lafayette Park, and effectively demolished all legal protection plaintiffs' rights in the free exercise of belief and free expression on issues of broad public concern in a traditional public forum against the "minimal" police force necessary to


crush the harmless exercise of belief and expression.


In pertinent part the Fourth Amendment provides:

"The right of the people to be secure in their persons ... property, papers, and effects, against unreasonable searches and seizures shall not be violated...."

Repeatedly, totally without provocation, and lacking any valid justification, police agents unlawfully searched plaintiffs and intentionally acted in such a manner so as to deprive plaintiffs of signs, papers and property. The seizure of plaintiffs' signs, literature, and property deprived each plaintiff of use of those articles, in violation of the Fourth Amendment.

"(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).

Moreover there have been numerous occasions when defendants' agents have seized signs, literature, or other property when it was not abandoned. Comp. pares. 58, 84.

On other occasions, such as the seizure of plaintiff Song's bicycle by Park Police agents on or about February 11, 1991 (Comp. para. 35), seizures have been entirely without probable cause, against the Fourth Amendment.


In pertinent part the Fifth Amendment provides that:

"No person shall ... be deprived of life, liberty, or property, without due process of law."

A. Property

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.

B. Liberty

"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

Infractions of Title 36 are minor infractions. To reasonably insure prosecution of alleged violations under Title 36 all that is necessary is the identification of the alleged violator and the issuance of a C.F.R. Violation Notice. When the identity of the alleged violator is known to the police official bringing the allegation, the arrest and detention of the alleged violator is baseless.

Even when an alleged violator, known to the police from previous encounters, refused to provide the police with any information regarding his identity or to sign any forms or even the citation itself, the police released the person because they knew his identity. Declaration of William Thomas, pares. 57-63.

However, as reflected by this Complaint, Park Police agents


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 Ninth Amendment to the Constitution provides:

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

Although the right to remain in a public park without being harassed, intimidated and maltreated by law enforcement personnel is not specifically enumerated, it must be recognized as a right inherently 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.

Defendants' pattern and practice of targeting plaintiffs with surveillance, threats, seizures, arrests, unnecessary force, and violence have deprived plaintiffs of their Ninth Amendment rights.


As if the termination of plaintiffs' organized communication with signs and literature were not sufficient cause for complaint, defendants have begun to progressively threaten plaintiffs' bodies with arrest for "camping," despite the fact


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).

Under 36 C.F.R. 7.96 (g)(l)(i), plaintiffs are exempted from permit requirements. Yet, to illustrate the permissible nature of plaintiffs' continuous presences, the National Park Service has routinely granted permits E.g., Exhibit 1.

"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.

It is well established that, as a religious devotion, plaintiffs have intended to "maintain a continuous presence." E.g., Complaint, October, 1988, pares. 4, 21(a) -(i). Traditionally a "compelling interest" has been required to suppress a sincere religious belief. Thomas v. Review Board, 450 U.S. 706 (1981); L. Tribe, American Constitutional Law, Sec. 14-10.

In Buckley v. Veleo, 424 US 1 the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of plaintiffs' expressive vigils depends on its "quantity." E.g. Exhibits 23(k), 24. The more time plaintiffs spend at their vigils the greater the quality with which their


symbolic action speaks to their commitment.

Because it is self-evident that with the incarceration of plaintiffs' bodies the "quality and quantity" of plaintiffs' vigils is severely diminished, this Court should subject the application of the regulations at issue to exacting scrutiny.

Defendants knew that plaintiffs' continuous presences caused no unsuitable impacts to park areas (Comp. para. 69), and that application of the camping regulation against plaintiffs was arbitrary, without probable cause, and a disruptive interference to the free exercise of their rights.

Defendants, and particularly Mr. Robbins, knew or should have known that "overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment." Clark v. CCNV, 684 U.S. at 299.

Mr. Robbins and others involved in the drafting, promulgation and enforcement of 36 CFR 7.96 (i) (1), should have known that the regulation was "not intended to stifle First Amendment exercise, but rather to protect undesignated areas from activities for which they are unsuited or the impacts of which they cannot sustain." Exhibit 14, pg. 24301.

"According to the Park Service's interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible 'camping' when it is done within any temporary structure erected as part of the demonstration." Clark v. Watt, 703 F. 2d 589. "A court may rely upon an agency's contemporaneously issued policy statement as an accurate representation of the agency's purpose." EDF v. EPA, 636 F.2d 1267, 1280. Because sleeping was not "done within any temporary structure," defendants should have known that any sleeping which might have occurred was incidental


to plaintiffs' legitimate First Amendment exercise.

Notwithstanding his broad knowledge and long-term familiarity with plaintiffs, and the legitimacy of their continuous presences, Mr. Robbins personally advised Park Police agents in the application of the camping regulation -- which one of defendants' agents described as "a game" intended to get the people "out of here" (Video @ 101.55 - 102.25) -- which continuously intimidated and threatened plaintiffs, actually resulting in arrests of some plaintiffs, under color of a continuously shifting definition of "camping." At various time" plaintiffs were subject to arrest for 1) sleeping for more than two hours, 2) sleeping for more than one hour, 3) kneeling on a sleeping bag, 4) sitting on a piece of cardboard, 5) not standing up. As a result, plaintiffs' vigils have been virtually eliminated, due to the escalating level of force and violence displayed in defendants' enforcement tactics.

"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.

Sgt. Rule's ever-shifting "camping" rule draws a clear line to trace the route by which defendants have maliciously colored plaintiffs' constitutionally protected "continuous presence" as the criminal "camping," under color of their regulations.

"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.

Now that their signs and literature have been seized,


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.

This same uncertainty over "sleep" and "property" posed in plaintiffs' earliest filings (e.g. Proposed Order filed November 23, 1988, see also Thomas v. United States, supra, at 707) still evades review. Thus, when questioned about their pattern and practice of harassment and psychological warfare, police agents begin to sound sardonic when they reply "take it to court."
Comp. para. 49.

Once again plaintiffs appeal for a civil resolution to this "chronic struggle," and seek simple definitions of "casual sleep" and "property" to eliminate the intense psychological and physical strain inflicted by defendants arbitrary enforcement, by settling the precise point at which a
constitutionally protected "continuous presence" becomes the crime of "camping."

AGAINST PLAINTIFFS VIOLATES 42 USC 1983 1985(3), and 1986

"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.

In this case, where agents seized literature and repeatedly


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.

"We have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite specificity." Thornbill v. Alabama, 310 US 88, 97-98; Atheker v. Secretary of State, 378 US 500, 515-517; United States v. Raines, 362 US 17, 21-23.

At least as early as March 5, 1985, fully a year before he participated in the final Federal Register publication of 36 CFR 7.96(g)(x)(B)(2), Mr. Robbins knew that

"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.

Therefore, Mr. Robbins knew or should have known that at least the "attendance" portion of 36 CFR 7.96 (g)(x)(B)(2) 3/ was unnecessary, unreasonable, and thus in violation of the First Amendment, the Administrative Procedure Act and Executive Order 12291. Comp. para. 82.

Testimony and evidence at trial will establish that, beyond the "attendance" requirement, defendants also included other restrictions in 36 C.F.R. 7.96(g)(x)(A)(B) which they knew or should have known were both unreasonable and unnecessary.

3/ In pertinent part, 36 CFR 7.96 (g)(x)(A)(4) provides that: "the term 'structure' does not include signs..."

In pertinent part 36 CFR 7.96 (g)(x)(B)(2) provides that, "signs must be attended at all times (the term 'attended' is defined as an individual being within three (3) feet of his or her sign(s)).


"(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.

The underlying Complaint, based on the doctrine articulated in Bivens v. Six Unknown Agents, 403 U.S. 388, asserts,

"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.

There is strong evidence that defendants have played a "game." Declaration of Allen Tubis pares. 18, 19, and Video @ 27.05, 102.16. Plaintiffs allege that object of this game was to place administrative policy above the law, by promulgating an unnecessary regulation, to be enforced in conjunction with other


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.).

The facts are:

(1) plaintiffs have vigorously asserted a spiritual message which is, frankly, unflattering to administrative policy;

(2) defendants knew that plaintiffs' unflattering message was protected under each clause of the First Amendment,

(3) defendants knew there was no legitimate interest to justify the suppression of plaintiffs' unflattering message;

(4) Mr. Robbins, in concert with others, has published three rulemaking proposals, and two final rules which

(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


(5) 36 C.F.R. 7.96(g)(x)(2)(A)(S), and (g)(i)(1) in conjunction 36 CFR 2 12, and Title 22, D.C. Code, Section 1121 have been applied by defendants' agents acting under direct advise of Mr. Robbins, and in concert with D.C. Metropolitan Police, against plaintiffs with the proximate and predictable result of causing plaintiffs to suffer assault, false arrest, false imprisonment, seizure of property, intentional infliction of emotional distress, and deprivation of constitutional rights.

"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.

It is difficult to imagine anything that might pose a greater threat to a democratic society than a paramilitary conspiracy with the objective of placing administrative policy above the very law upon which the democracy was founded. See Comp.


Considering that this action was originally filed as a class action (Complaint, October, 1988, para. 5), perhaps even more important than the chilling effect which defendants' recent actions have had on plaintiffs personally is the overall effect that defendants' regulatory fabrications have had on the people of the United States in general. E.g. Exhibits ll (a) -(r), Video @ 53.45, and Declaration of Allen Tubis, para. 17.


The recent circumstances which gave rise to the instant motion are alleged to have been animated by the intent to silence


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.

On January 27, 1991, Mr. Robbins, Mr. Meyers, and others, knew or should have known that plaintiffs' drumming was First Amendment activity; that 36 C.F.R. 2.12 was intended to "separate() those audio devices which may ... be utilized in the exercise of First Amendment rights from those devices which are merely noise-producing" (Exhibit 7); that "(t)he standard here will be whether the noise is reasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, or impact on other park users" (Exhibit 8) and, therefore, that the application of 36 C.F.R. 2.12 to silence plaintiffs' "damned drums" on America's traditional First Amendment front lines (supra p. 5) was improper. 4/

4/ 36 CFR 2.12 provides, in pertinent part:

"(a) The following are prohibited:
"(1) Operating motorized equipment or machinery such as an electric generating plant, motor vehicle, motorized toy, or an audio device, such as a radio, television set, tape deck or musical instrument, in a manner: (i) That exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet; or, if below that level, nevertheless; (ii) makes noise which is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, purpose for which the area was established, impact on park users, and other factors that would govern the conduct of a reasonably prudent person under the circumstances. ()
"(4) Operating a public address system, except in connection with a public gathering or special event for which a permit has been issued pursuant to section 2.50 or section 2.51."


On January 27, 1991 defendants began, in concert, to apply 36 CFR 2.12, and Title 22, D.C. Code, Section 1121, as "probable cause" to authorize threats, harassment, intimidation, arrest, and incarceration to be inflicted upon plaintiffs and other members of the general public (Exhibits ll (a)-(r)), with the intent to suppress the lawful exercise of civil rights and to silence plaintiffs' "damned drums."


Irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate. Danielson v. Local 275, 479 F.2d 1033, 1037 (2d Cir. 1973).

"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).

Suppression of First Amendment exercise has been held to constitute "irreparable injury," and to constitute "substantial money damages." City of Watseka v. Illinois Public Action Council, 796 F.2d 1559, Summarily Affirmed by the Supreme Court, slip opinion 86-631, January 27, 1987.

"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).

The plaintiffs were motivated by sincere religious beliefs to engage in a harmless expressive activity which merits absolute protection under each clause of the First Amendment, as well as for the preservation of freedom.


"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.

If the Court is satisfied that defendants have seized signs and literature and have enforced the "camping" regulation on the strength of arbitrary decisions by enforcement personnel, then plaintiffs have shown a need for relief.

On the allegations of this complaint, the police officers' actions strike at the very "foundation of free government by freemen." Schneider v. State, 310 U.S. 147 at 161


Defendants will not be able to define any harm that will result from granting this motion.

Plaintiffs are aware of only two instances where the government has been required to show a specific interest in enforcing any of these regulations against plaintiffs' continuous presences. In those cases, plaintiffs believe, the government failed to show any valid interest which would meet the requirements in this case:

(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.


Initially plaintiffs asserted that, "when the government acts to suppress the guaranteed rights, privileges or immunities of any individual under color of regulation, the liberty of all individuals is jeopardized under color of the same regulation." Original Complaint October, 1988, para. 6.

Essentially the defendants have used the tools of violence, seizure, and imprisonment without probable cause to chill and finally suppress opposition to the Persian Gulf war. Defendants achieved their final suppression of opposition by coloring plaintiffs' protected exercise of religion, dissemination of literature, display of signs, speech, and assembly as criminal activity under color of the regulations.

"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).

It is not consistent with the concept of perfecting Union, establishing Justice, insuring Domestic Tranquility, promoting the General Welfare, or securing the Blessings of Liberty to ourselves and our posterity that police officers, under color of regulations, should be permitted to do things common to hoodlums, and to the abridgement of the First, Fourth, Fifth, and Ninth Amendments of the Constitution.



In light of the foregoing discussion, it is clear that the plaintiffs have met the familiar standards for temporary relief set forth in Virginia Petroleum Jobbers Ass'n v. PPC, 259 F.2d 921 (DC Cir. 1958) and WMATA v. Holiday Tours, 559 F.2d 841 (DC Cir. (1977)). First, there is a likelihood that the plaintiffs will prevail on the merits of the Complaint. Second, the signs and literature addressed by this motion were in reasonable compliance with the provisions of 36 C.F.R. 7.96(g)(x)(A) and (B). If relief is not granted, plaintiffs will be irreparably injured in their efforts to exercise their freedom of expression and assembly, and to be secure in their persons and property from unreasonable searches' seizures, arrests, and violence.

Hence, the issuance of a Temporary Restraining Order will not harm the defendants. It will simply restore the status quo ante bellum, which never produced any substantial ill effects to any defendants or their legitimate interests.

Finally, the public interest clearly lies in compelling the Government to avoid unnecessary restrictions on First Amendment freedoms.


WHEREFORE, plaintiffs hereby pray the Court will issue a Temporary Restraining Order, to restrain government defendants from removing or threatening to remove plaintiffs, or their lawful signs and literature, from Lafayette Park, and a Preliminary Injunction, to restrain government defendants from


arresting plaintiffs for CFR violations, or applying 36 CFR 2.12 to silence their drums.

Respectfully submitted this 21st day of March, 1991,

/s/ W. Thomas c-0
William Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001
(202) 462-0757

/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


I, , hereby state that, on this 21st day of March, 1991 I caused a copy of the foregoing Plaintiffs' Memorandum in support of their Motions for Preliminary Injunction and Temporary Restraining Order to be hand delivered to the offices of Jay B. Stevens, U.S. Attorney for the District of Columbia at Judiciary Square, 555 4th Street N.W., Washington, D.C., and the Office of the Corporation Counsel for the District of Columbia.