UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Huddle, et. al.                   )
      Plaintiffs pro se           )      C.A. No. 88-3130
                                  )
          v.                      )      Judge Joyce Hens Green
                                  )
Reagan, et. al.                   )
      Defendants.                 )
__________________________________)

PLAINTIFFS' MOTION TO RECONSIDER

On May 24, 1991 this Court entered a Memorandum Opinion and a Judgment "in favor of defendants and against plaintiffs. For the reasons stated in the accompanying memorandum, plaintiffs now move for reconsideration.

Respectfully submitted this 3rd day of June, 1991,

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

_______________________
Scott Michael Galindez, pro se
2817 11th Street N.W.
Washington, D.C. 20001

_______________________
Ellen Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001

__________________________
Concepcion Picciotto, pro se
P.O. Box 4931
Washington, D.C. 20008

MEMORANDUM IN SUPPORT OF
PLAINTIFFS' MOTION TO RECONSIDER

In its Memorandum Opinion ("Memo"), filed May 24, 1991 this Court granted federal defendants' motion to dismiss, and District of Columbia's motion for summary judgment. Plaintiffs now ask for specific consideration of the points discussed below.

BACKGROUND

Its settled that "(p)laintiffs have attempted to maintain a continuous presence in ... Lafayette Park.... (c)ompelled by their religious 1/ and political convictions...." and that "(o)ver the course of their vigil ... plaintiffs and law enforcement officials have engaged in an ongoing conflict arising from plaintiffs' exercise of their First Amendment rights...." Memo @ 3. "[Plaintiffs'] claims center on a theory that the regulations themselves, and the emergent pattern of their enforcement, reveal a conspiracy ... to quell plaintiffs' twenty-four hour First Amendment vigil." Id. @ 5.

The Court correctly found that plaintiffs did not mean to bring common law tort claims in this suit, but are not precluded from bringing constitutional tort claims. Memo @ 9, ftn. 8.

However the Court still finds "it is difficult to discern, plaintiffs ... challenge (to) the enactment and enforcement of several federal regulations." Id. 2/

1/ In Defendants' Reply to Plaintiffs' Opposition to the Motion to Dismiss, filed January 27, 1989 counsel for the federal defendants raised a disingenuous challenge to the validity of plaintiffs religious beliefs, a critical consideration under 42 USC 1985(3). Plaintiffs moved for sanctions. The Court summarily denied that motion.

2/ The Court's difficulty with discernment may be wholly attributable to the pro se nature of their pleadings. Plaintiffs urge the Court not to be so preoccupied by the form of plaintiffs' untutored pleadings as to mistakenly overlooks factual substance. Haines v. Kerner, 404 U.S. 519 (1972).

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DISCUSSION

It may be discerned that the heart of this complaint rests on 42 USC Sections 1985(3) and 1986. Particularly, plaintiffs think, Ellen Thomas' Motion to Supplement the Representation of Plaintiffs' Constitutional Claims Against the Regulations at Issue, filed December 12, 1989, etches a firmly discernible picture of the precise manner in which three of the regulations at issue were wrongfully applied.

The preliminary relief plaintiffs seek is modest. First, to protect their guaranteed First Amendment exercise from interruption, and themselves from false arrest, imprisonment, harassment, in violation of the Fifth and Sixth Amendments, plaintiffs ask for clear and simple definitions of the words "sleeping" and "property." Second, to save their rights under the Fourth Amendment, plaintiffs request that defendants and their agents be enjoined from seizing plaintiffs' lawful signs and literature, and that they be required to return certain lawful signs and literature which defendants have already taken. Third, plaintiffs seek to enjoin the enforcement of 36 CFR 2.12 in Lafayette Park. 3/ Fourth, they urge the Court to enjoin defendants from arresting them when the same results could be realized by issuing a citation violation notice. Finally, plaintiffs request reasonable damages for the deprivation of their signs and literature.

This Court cites Thomas v. United States, (Thomas II) 691 F. Supp. 704, and Thomas v. News World Communications, (Thomas I)

3/ The Court's Memo is absolutely silent on plaintiffs claims arising from the enforcement of 36 CFR 2.12 (infra pg. 5).

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681 F. Supp. 55. In the onset of Thomas II Judge Oberdorfer understood perfectly how plaintiffs' allegations represented a valid claim.

"Plaintiffs(') complaint states a substantial federal claim. The fact that the constitutionality of the regulations is well-settled does not prevent the plaintiff from claiming, pursuant to 42 USC 1983 and Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 1971)." Order, filed June 3, 1985, Thomas II.

This Court's Memo (@ 5 and 6) also makes reference to then-Magistrate Arthur Burnett's participation in Thomas II, without discrediting the Magistrate's bottom line,

"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." Memorandum Opinion, Report and Recommendation, filed January 13, 1987, @ 14, Thomas II, USDC C.A. 84-3552.

This Court also recognizes that plaintiffs might state a cause of action under the Bivens doctrine, but holds that plaintiffs have failed to meet the "requirement that 'the circumstances ... shall be stated ... with particularity.'" Memo @ 11. Emphasis in original.

The Court's Memo is devoid of any specific reference to even one of the many "incidents of seeming misconduct" (Memo @ 13) chronicled throughout plaintiffs' pleadings. E.g. Complaint, paras. 21-80; Amended Complaint, November 23, 1988 paras. 12-39; Plaintiffs' Clarification of Complaint, filed January 17, 1989 paras 1-143; Summarization of Complaint September 12, 1989 paras. 25-52; Complaint in Support of the Renewed Motion for Injunctive Relief, filed March 21, 1991 paras. 1-90). Therefore

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plaintiffs believe that this Court has stumbled into the same pitfall which caused Judge Oberdorfer to turn a blind eye to the facts -- as well as to the Magistrate's just and reasonable Recommendation -- and decide on stare decisis.

It now appears that this Court also opts to ignore the concrete facts and rely instead on an abstract legal theory which pivots on the premise that any challenge to the regulations must be precluded by previous decisions in Clark v. CCNV, 468 U.S. 288 (1984), "camping regulation"; White House Vigil for the ERA v Clark, 746 f.2D 1518 (D.C. Cir. 1984), "White House Sidewalk regulation"; and United States v. Musser, 873 F.2d 1513, cert denied (1989), "Lafayette Park Sign Size regulation." Memo @ 18 and 19. The loophole in the Court's theory of stare decisis is outlined in Ellen Thomas' Motion to Supplement the Representation of Plaintiffs' Constitutional Claims Against the Regulations at Issue, filed December 12, 1989; see also, Monell v. Department of Social Services, 436 U.S. 658, 690-94; Memo @ 23.

"(P)laintiffs must allege and prove five elements: (1) a conspiracy and (2) an act in furtherance of the conspiracy; (3) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (4) which conspiracy was motivated by some class-based, invidious, discriminatory animus; (5) whereby a person is injured or otherwise deprived of a right or privileges. See Hobson v. Wilson, 737 F.2d 1 @ 14." Emphasis added.

Plaintiffs respectfully submit that they have no burden at this point of the proceedings to "prove" anything. Rather, plaintiffs believe their present obligation is only to allege "in detail the factual basis necessary to enable defendants intelligently to prepare their defense." Id. @ 30.

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"This claim asserts that the defendants have engaged in a concerted effort to organize and execute totalitarian police state tactics under color of an intricate regulatory scheme, with the intent to deprive plaintiffs of various rights privileges, and immunities which defendants knew, or should have known, were guaranteed plaintiffs under the Constitution of this nation. In furtherance of the alleged plot to deprive plaintiffs of Constitutional protection, certain defendants organized a complex and far-reaching plan to evade certain constitutional safeguards provided for in the Administrative Procedures Act of Title 5 USC. The "various known and unknown government agents" performed the actions necessary to further the alleged conspiracy. It is alleged that the animus of defendants' alleged conspiracy was to suppress the exercise of the primary tenet of plaintiffs' religion, 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 the common law torts of 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 in violation of the First, Fifth, Sixth, Ninth, and Four-teenth Amendments to the Constitution of the United States of America, in violation of 42 USC 1985(3), and 1986." Complaint, filed October 27, 1988, para. 20.

These assertions are supported by detailed facts. E.g. Complaint, paras. 21-80; Amended Complaint, November 23, 1988 paras. 12-39; Plaintiffs' Clarification of Complaint, filed January 17, 1989 paras 1-143; Summarization of Complaint September 12, 1989 paras. 25-52; Complaint in Support of the Renewed Motion for Injunctive Relief, filed March 21, 1991 paras. 1-90. In failing to address these factual allegations the Court has run contrary to the standards on which its dismissal rests.

It is axiomatic that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Cite omitted) The factual allegations

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of the complaint must be presumed true and liberally construed in favor of plaintiff. (Cite omitted) The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. (Cite omitted)." Memo @ 7.

Plaintiffs do not believe that their conspiracy allegations are "unsupported" or "conclusory." See e.g., Complaint in Support of the Motion to Renew paras. 65-90. Moreover, plaintiffs contend that, within their broad conspiracy claim, they have succinctly alleged a microcosmic conspiracy (id. paras. 15, 18, 19, 20, 21, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60 and 61), which the Court has appearantly failed to notice: certainly an unfavorable lack of inference for plaintiffs.

The Court denies validity to plaintiffs' claims under 42 USC Sec. 1983 by reasoning that plaintiffs "describe() a conspiracy that could only have proceeded 'under color of' federal law." Memo @ 15, emphasis in original. Allegations which would contradict the Court's legal theory are just not considered. For example, the Court makes absolutely no mention of incidents involving Title 22 D.C. Code Sec. 1121 (e.g.. Complaint in Support of the Renewed Motion for Injunctive Relief, filed March 21, 1991, Count 23), and violations of the Administrative Procedure Act. Id. Count 24.

One FACTUAL presumption, most decidedly unfavorable to plain-tiffs, was that their "videotape exhibit (filed March 21, 1991) supports defendants contention that plaintiffs have failed to pro-vide the Court with evidence of a conspiracy." Memo @ 13 emphasis in original. The Court critiques plaintiffs' videotape in two major respects (Memo @ 13 1nd 14), and sums up its opinion in a footnote:

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"The entire tape must be viewed to appreciate that ... the recorded events do not proceed chronologically; and because plaintiffs are often depicted goading defendant officers, it is difficult to discern, what, if anything, prompted the officers' response." Memo @ 19, ftn. 15. 4/

In FACT by referring to Plaintiffs' Motion to Renew, March 21, 1991, Exhibit D (Video Index), it is not even necessary to view the tape in order to appreciate that:

1. While this complaint spans a period of nearly ten years, with the exception of a short "Background," the tape deals only with the period between January 24, 1991 and March 7, 1991. Thus it is inappropriate to dismiss the entire complaint on the strength of the limited time period covered in the tape.

2. Aside from the Background, the tape is divided into three separate segments ("Sign Seizures," 000.00-21.00; "Violence," 22.30-36.15; and "Camping," 44.58-119.03.).

3. Each separate segment of the tape is chronologically ordered within that segment. The Sign Seizure and Violence segments proceed in precise chronological order. Only in the Camping segment are there two slight and insubstantial departures from perfect chronological order (57.14-58.25 and 105.50-106-25). Id. Exhibit D @ 5 and 6.

4. Most significantly the tape was specifically intended to illustrate several discrete issues. See Motion to Renew @ 1-4, and Declaration of William Thomas, In Support of Motion to Renew, Exhibit C. In looking to the tape for "proof" of a conspiracy -- which might only be found at a trial -- the Court has utterly

4/ Plaintiffs also clearly explained that the tape had been drawn from thirty hours of raw footage, and that tape is also available. Declaration of Ellen Thomas in Support of Motion to Renew, para. 2.

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failed to address the specific issues (i.e. illegal seizure of signs and literature, excessive force, and the arbitrary application of the camping regulation) which the tape presented.

5. Based entirely on the videotape the Court also concludes from the videotape that "plaintiffs' continuous use of Lafayette Park, coupled with the presence of sleeping bags and other personal items ... support ... defendants position that plaintiffs were not complying with the regulation that prohibits camping." Memo @ 18. 5/ However this opinion fails to recognize that "continuous use of Lafayette Park" is, under both prevailing policy statements and judicial precedent, constitutionally permitted and protected (e.g., Complaint in Support of the Motion to Renew, paras. 47, 67-69, see also Video @ 46.43), and ignores the fact that a factual determination on the permissability of "sleeping bags and other personal items" is part of the specific relief sought by the complaint.

6. According to the Court "plaintiffs are shown resisting arrest" on the videotape. The Court does not state where these incidents are depicted on the tape, and it is important to note that no plaintiffs were charged with resisting arrest.

8. At another point the Court does approach the factual allegations of the complaint as if they were true:

"(Plaintiffs may have documented what were, at best, isolated instances of seeming misconduct." Memo @ 13,

but then construes the facts liberally in favor of defendants.

5/ It is noteworthy that, during this period of "increase in Park Police presence and enforcement of the regulations" (Memo @ 18) Karin Love, whose charge was no-papered, and Scott Galindez (Video 101.57-102.25, Complaint, March 21, 1991, para. 54), who is currently awaiting trial, were the only plaintiffs even charged with "camping."

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The Court states that it "cannot discern (from the tape), what prompted the defendants' response." Which, plaintiffs think, is a determination that should be made at trial. Then the Court proceeds to award all favorable inferences which may be drawn from those "isolated instances of seeming misconduct" to the defendants, by determining, from the same assertedly incomplete, chronologically-deficient videotape, that plaintiffs have "resisted arrest," "were not complying with the regulation," and were "goading" the police, it seems obvious that the Court has found no difficulty in liberally construing the facts in the light most favorable to defendants.

Plaintiffs believe that a fundamental error of perception is reflected in the Court's observation that:
"(D)efendants do not dispute that there was a substantial increase in ... Park Police presence and enforcement of the Interior regulations." Memo @ 18.

In fact the explanation for the substantial increase in police presence is an issue which defendants have asserted, and which plaintiffs have disputed. See Plaintiffs' Second Motion for Sanctions, April 15, 1991 @ 1 and 2; summarily denied. Memo @ 24, ftn. 20.

Although the Court also denied plaintiffs' motions for discovery (Memo @ 19, ftn. 16), there is strong evidence that police videotapes, part of the material requested, would support plaintiffs' contention that their arrests were groundless.

"In any event ..., plaintiffs are surely free to challenge their arrests in the proceedings in which they are defendants." Memo @ 21, ftn. 17.

On May 30, 1991 Assistant U.S. Attorney Steven W. Pelak represented to Judge Gesell that, after viewing police videotapes

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of plaintiff Concepcion's arrest (Complaint in Support of Motion to Renew, March 21, 1991, paras. 23 and 24), there was insufficient grounds for the arrest. Judge Gesell dismissed the charges. United States v. Conecpcion Picciotto, USDC Cr. No. 91-228.

In this event Concepcion was fortunate. Just the same, plaintiffs believe it is unfortunate that this Court, which has repeatedly complained of being over-burdened with criminal cases, sees no problem in allowing plaintiffs to be repeatedly thrown into the criminal arena where they are free to take their chances defending against groundless charges prosecuted by very clever professionals.

With all due respect, plaintiffs believe that they are still entitled to a presumption of innocence, and an opportunity to delineate the limits of the law through a civil proceeding before they are subjected to the rigors of criminal defense. It appears that the Court's present approach makes a mockery of the civil process, and bypasses the keystone principles "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. The plaintiff is entitled to all favorable inferences which may be drawn from those allegations." Memo @ 7.

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CONCLUSION

Plaintiffs ask for the Court's careful consideration of the foregoing discussion. If the Court deems the points raised to be factually accurate, plaintiffs move that their complaint be reinstated, or, at least, that the Court's dismissal be without prejudice.

Respectfully submitted this 3rd day of June,1991,

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

_______________________
Scott Michael Galindez, pro se
2817 11th Street N.W.
Washington, D.C. 20001

_______________________
Ellen Thomas, pro se
2817 11th Street N.W.
Washington, D.C. 20001,

__________________________
Concepcion Picciotto, pro se
P.O. Box 4931
Washington, D.C. 20008

CERTIFICATE OF SERVICE

I, ________________________________, hereby state that, on this 3rd day of June,l991 I caused a copy of the foregoing Motion for Reconsideration to be hand-delivered to the offices of Michael Martinez, Assistant 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.