No. 91-5304 SEPTEMBER TERM,1991 Mary Huddle, et. al., CA No. 88-3130 Appellants v. Ronald W. Reagan, et. al., Appellees.
The Federal Appellees have moved for summary affirmance. Appellant ("Thomas") submits the record shows he is entitled to further briefing and argument on most 1/ of the issues presented. Taxpayers v. Stanley, 819 F.2d 294, 297 (DCCir.1987).
Notwithstanding the representations of appellees' motion, the District Court (Hon. Joyce Hens Green) "determined that th(is) appeal ... presents a substantial question, as required by 28 U.S.C. Sec. 753(f)." Orders, USDC Civ. No. 88-3130, September 4 & 11, 1991. (For the Court's convenience an Appendix ("Exhibit (#)") accompanies this Opposition.) See, Exhibits 1 & 2.
Pro se "(p)laintiffs have attempted to maintain a continuous presence in front of the White House.... Compelled by their religious and political convictions, plaintiffs have sought to
1/ The docket sheet reflects that appellees are correct in asserting that appellant failed to comply with Local Rule 203(b). Accordingly appellant withdraws his class action claim.
Tort claims (Huddle Memo, pgs. 8, 9; Appellees' Motion, pgs. 3-6), however, are not at issue in this case. Assaults, deprivations and destructions of property, false imprisonments, etc., are framed here as constitutional claims, because all interaction with appellees or their agents has occurred as a direct result of appellees' attempts to suppress appellant's expressive and religious activities. See, Plaintiffs' Response to Federal Defendants' Reply to Plaintiffs' Opposition to the Motion To Dismiss, February 8, 1989, pgs. 1, 2.
urge the general public and, through their presence across the street from the President's residence, the President himself, to strive towards the elimination of nuclear weapons.... The message they hope to perpetuate is ... 'Peace through Reason.'" Dismissal Order ("Huddle Memo"), May 24, 1991 pgs. 3 & 4.
"Over the course of their vigil, which commenced in 1981, plaintiffs and law enforcement officials have engaged in an ongoing conflict 2/ arising from plaintiffs' exercise of their First Amendment rights and defendant's enforcement of several Interior regulations...." Huddle Memo, pgs. 3 & 4.
As President and commander-in-chief of the police/armed forces, both appellees Reagan and Bush promoted the concept of "Peace through Strength," in diametric opposition to the concept of "Peace through Reason" promoted by appellant. Supplemental Complaint, March 21, 1991 (hereinafter "CMPLT") para. 71.
"Plaintiffs contend ... defendants conspired to extinguish their constitutional and statutory rights; that ... enforcement of Department of Interior regulations inhibits the free flow of ideas and information in violation of the First Amendment; and that plaintiffs have been subjected to a pattern and practice of malicious harassment." Huddle Memo, pgs. 1 & 2.
"Various known and unknown government agents performed the actions necessary to further the alleged conspiracy." Complaint, filed October 27, 1988, para. 20.
It is undisputed that as a direct and proximate result of
2/ The District Court recognized this as an "on-going conflict," logically dispelling appellee's contention that the statute of limitations may have even begun to tick.
the aforesaid actions appellant has repeatedly been harassed, arrested, assaulted, imprisoned, had signs, literature, and other expressive articles seized and/or destroyed, and had his expressive activities disrupted and suppressed.
Appellees do not even suggest that appellant ever engaged in any unsuitable or harmful activity in Lafayette Park.
Essentially appellant seeks a Declaration stating that hisrights under the First, Fourth, Fifth, and Ninth Amendment have been violated by appellees, or their agents, as a result of appellees' efforts to interfere with "communicative activities between [appellant] and members of the news media and general public" (see, Order, September 13, 1989, Exhibit 3), to enjoin the seizure of appellant's lawful signs and literature, and to establish specific guidelines to delineate lawful "sleeping" from unlawful "camping."
The gravamen of this action is the alleged suppression by appellees of appellant's freedoms of thought and expression. This is a serious matter. CMPLT. Count Thirty.
"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, 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 l3l (l96l); 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, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).
Which explains why "(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See New York Times v. United States, 427 U.S. 763." Elrod v. Burns, 427 U.S. 347, 373 (1976).
1. IT IS OBVIOUS THAT APPELLANT IS ENTITLED TO RELIEF.
"(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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Although the District Court held "that plaintiffs
are not entitled to the relief they seek" (Huddle Memo,
pgs. 2 & 3), on two separate occasions the District Court
substantially granted the preliminary relief sought by appellant.
See, Orders filed September 13, 1989, and October 12, 1990.
Exhibits 3 & 4. 3/
If only because the Court has twice granted relief, it is obvious that relief must, indeed, be available.
"(This Circuit Court has repeatedly) asked the district court to provide a clear statement of reasons when dismissing a complaint.... The statement serves two purposes: it facilitates appellate review by informing this court and the parties of the grounds on which the action was dismissed, and, 'more importantly,' it ensures that the district court has carefully considered the complaint and the applicable." In re Pope, 679 F.2d 931, 934 (DC Cir.1982); (other cites ommitted)." Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985), at 794, citing Brandon v. D.C. Parole Board, 734 F.2d 56 at 62; Redwood v. Council of D.C., 679 F.2d 931, 934 (DC Cir.1982).
3/ Notably, the District Court's resolution of the case makes no reference to the incidents which gave rise to these Orders. Moreover, while appellees' counsel made absolutely no attempt to address appellants' factual allegations concerning these incidents.
Unlike the situation in Sills, the District Court here pointedly held that this "appeal is not frivolous." Exhibits 1 & 2.
But the court in Sills at least explained its dismissal with a "cryptic notation on the face of the complaint" (id at 793). Here, as seen below, the District Court dismissed for failure to state a claim without even a "cryptic notation" to explain its resolution of several pertinent allegations.
Acting in concert with various identifiable superior and subordinate government agents to further their alleged conspiracy to place administrative policy above the law, Mr. Robbins entered false or grossly exaggerated information in the Federal Register, October 4, 1990, in violation of the APA, 42 USC 1983, 1985(3)(4), and 1986. CMPLT. Count Thirty-Three.
"(T)he National Park Service stopped imposing (an improper) rule when the United States Court of Appeals for the District of Columbia Circuit reversed the criminal conviction against a defendant charged with a violation of the rule.... United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989)" Federal Register Vol. 55 No. 193, October 4, 1990, pg. 40680 (RN 1024-AB93).
The District Court overlooked this allegation.
"With respect to the publication of RN 1024-AB93(,) ... (a)ppellees' counsel can locate no such publication, (and purportedly does) not know to what appellants are referring." Appellees' Motion, pg. 15, n. 15. (Parentheses added.)
For the sake of clarity, appellant is referring to the allegations summarized at CMPLT. Count Thirty-Three. For the sake of a more perfectly informed government counsel, appellant appends hereto a copy of RN 1024-AB93. Exhibit 5.
Similarly, the District Court remained mute on appellant's claims involving 36 C.F.R. 2.1.2. E.g., CMPLT. paras. 13, 15, l8, l9, 20, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87 & CMPLT. Count Seventeen. See, infra, pgs. 10, 11, Heightened Pleading Standard.
Again, although the claims are well documented, appellees are "unaware of any allegations relating to this regulation." Appellees' Motion, pg. 15, n. 15.
The District Court had no comment on appellant's claims involving Title 22, D.C. Code, Section 1121(3). 4/
Characteristically, appellees are unaware that allegationsunder color of Title 22 D.C. Code, Section 1121(3), are directed at the federal appellees, rather than the District of Columbia. Appellees' Motion, pg. 15, n. 15.
That federal appellees should address this discrete issue is eminently appropriate, by virtue of the fact that it was the federal appellees, not District of Columbia appellees, who were responsible for abuse of process, appellant's baseless arrests and the suppression of his protected exercise under color of D.C. Code Title 22 Section 1121(3). Exhibits 6, 7.
The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Ramirez de Arellano v. Weinbergher, 745 F.2d 1500, 1506 (D.C. Cir. 1984)5A C. Wright & A. Miller, Federal Practice and Procedure, Section 1357, p. 304 (1990).
Appellant submits that the District Court violated this axiom in assessing the pleadings of this case, and that the Court's departure from this standard is clear in its assessment of the videotape. For a few instances:
a) "As is apparent from the videotape ... plaintiffs are shown resisting arrest. [And] .... were not complying with the regulation that prohibits camping." Huddle Memo, pg 18.
The simple facts are that, throughout the entire duration depicted on the videotape, a) none of the plaintiffs was even accused of resisting arrest, b) none of the plaintiffs was convicted of violating any regulation, and c) with the exception of Love and Galindez (who were not convicted), none of the plaintiffs was even charged with "camping."
b) "(A)though plaintiffs may have documented .. instances of seeming misconduct ... the Court cannot discern what prompted the defendants' response." Huddle Memo, pg. 14.
On the other hand, it seemed to the District Court as if "plaintiffs" had "goaded the police." Huddle Memo, pg. 13), without speculating what prompted this perceived "goading."
Yet appellant informed the Court that the thirty-odd hours of video from which the composite had been assembled was available for determining what, if anything, "prompted the defendants' response" (Plaintiffs' Motion to Renew Their Motions
for TRO, March 21, 1991). This detail makes it difficult to understand how the Court "liberally construed the factual allegations in favor of plaintiffs." Exhibit 8.
c) Moreover, the District Court writes, "the videotape exhibit ... does not proceed chronologically." Huddle Memo pg 13.
Without even viewing the videotape the chronology can be ascertained from the cross-referenced Video Index 5/ (Exhibit 8). To double check, one need only view the videotape.
Before the District Court wrote, "plaintiffs have ... failed to demonstrate federal defendants' discriminatory animus" Huddle Memo pg. 11), it noted that appellants were "compelled by their religious and political convictions." Id. pgs. 3, 4. Under prevailing precedent "religious (or) political convictions" are accepted as ripe targets of "discriminatory animus." Hobson v. Wilson, 737 F.2d 1, 15, citing Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3352.
That appellees posed a disingenuous challenge to appellant's factual representations on this point only indicates another disputed issue. See, Appellant's Opposition to Federal Appellees Motion for Summary Affirmance of the District Court's Refusal to Conduct a Sanctions Hearing, filed with this Court on
5/ In fact there can be no question that 1) the tape is divided into three distinct segments ("Sign seizures," 000.00-021.00; "Violence," 022.30-036.15; and "Camping," 044.58-119.03), and 2) each segment of the tape is chronologically ordered within that segment. The "Sign Seizure" and "Violence" segment proceed in nearly precise chronological order. The "Camping" segment does contain two slight, but insubstantial, departures from perfect chronological order (057.14-58.25 and 105.50-106.25).
November 25, 1991 ("Opposition on Sanctions"). 6/
The District Court finds, "(e)xcept for isolated instances of misconduct ... plaintiffs have failed to support their conclusory allegations of conspiracy," Reconsideration Order, Pg 2, and that, "(p)laintiffs ... have failed to explain sufficiently how defendants have engaged in a common plan." Huddle Memo, pg. 11.
Nonetheless, appellant's allegations were to be construed as true and were entitled to all favorable inferences which may be drawn from the allegations. Scheuer v. Rhodes, 416 U.S. 232, 234.
"(G)iven the posture of this case, we must take all of plaintiffs' allegations as true." Reuber v. United States, 750 F.2d 1039, 1055 (DC Cir.1985).
The District Court required that "plaintiffs must allege and PROVE five elements...." Huddle Memo, pg. 6, emphasis added. Certainly proof would be necessary for appellant to prevail at trial. However, appellant believes that, at this point, the Court got ahead of itself. Hobson v. Wilson, 737 F.2d 1 at 10.
"Petitioner argued that although she had no knowledge of an agreement between (respondent) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at 157.
Although it has approached the threshold of scrutiny, the specific question of whether the elimination of appellants' signs and expressive presence from Lafayette Park under color of various regulations has been the object of a conspiracy, planned and executed by appellees, has entirely escaped judicial review.
6/ Opposition on Sanctions also shows that the District Court favored Major Holmsburg's representations to appellant's.
Taking appellant's allegations as true there emerges a considerable number of sequences of events, all involving Mr. Robbins and certain other principles specifically identified throughout appellant's different pleadings. Appellant believes these various "sub-conspiracies" each create a substantial enough possibility of a conspiracy to merit a trial.
With the onset of armed hostilities in the Persian Gulf, appellant began to demonstrate with prayer drums. It was a very effective method of communication which received considerable attention in the news media and attracted many participants, without causing any harm. CMPLT. paras. 8 & 9.
On January 25, 1991 appellee Bush publicly stated, "Those damned drums are keeping me awake all night." Id para. 15.
On January 27, 1991, under color of the regulation at 36 C.F.R 2.12 -- which, appellant alleges, was inappropriate for Lafayette Park (CMPLT. para. 20) -- and Title 22 D.C. Code, Section 1121, appellees began a pattern and practice of "60 decibels" enforcement which resulted in three arrests and incarceration of appellant Thomas, for which no probable cause was ever shown. E.g., Exhibits 7 & 8. 7/
This unjustified regulatory enforcement, supervised by appellee Robbins, had the effect of discouraging, disrupting, or
stifling peaceful expression. CMPLT. paras. 13, 15, l8, l9, 20, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87 & Count 17.
On February 5, 1991, President Bush characterized his "damned drums" statement as "hyperbole," and made statements regarding "60 decibels," and "incessant drummers," indicating his personal awareness of the entire operation. CMPLT. para. 31.
It may reasonably be inferred that President Bush didn't like the drums because they were an effective voice of dissent, but knew the drums were protected under the First Amendment, and that the President's "hyperbole" was actually a lie intended to drum up sympathy for himself and engender public animosity against appellant. Rizzo v. Goode, 423 U.S. 362 (1976). 8/
These three three baseless arrests alone should be sufficient to exemplify the error of thinking "'(e)ach plaintiff points to a single instance 9/ -- his or her own arrest -- as illustrative of the alleged unlawful pattern...." Huddle Memo, pg. 20. Appellant asserts that his three arrests for drumming and "disorderly conduct" by themselves would be sufficient to
8/ Citing Minnesota Chippewa Tribe v. Carlucci, 353 F. Supp 973, 976, "as a rule joinder of the President ... is generally unnecessary," the District Court dismissed "all claims against President Bush." Huddle Memo, pg. 2, ftn 1.
Appellant understands that as a general rule the joinder of the President is very difficult, but it is not impossible. USA v. Nixon, 418 U.S. 683, also Marbury v. Madison, 1 Cranch (1803). Given the intimate presidential involvement in oversight of police enforcement actions suggested from the facts presented here, this case would be one of those exceptions where joinder of the president would be necessary to obtain relief.
9/ ***NOTE***, Allegedly owing to appellee's affirmative action (See, Opposition on Sanctions. ftn. 1; cf. Plaintiffs' Motion to Strike Defendants' Exhibit 4), the precise number of baseless arrests suffered by Thomas is far more confusing than necessary. Appellant puts the number at 21. state a claim under both 42 USC Sections 1983, and 1985(3).
These facts raise "genuine issues that properly can be resolved only by" trial. Anderson v. Liberty Lobby, 477 U.S. 317, 324 (1988). That the District Court failed to draw these very evident inferences was most unfavorable to appellees.
"(In) a memorandum, dated 13 January 1983, then- Secretary of the Interior James Watt to an aide, Moody Tidwell(,) Watt requested 'a briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse.' In March 1983 Watt received a briefing from the principal drafter of the new regulations and told him to 'keep up the good work.... In the circumstances it would appear that plaintiffs' claim in this regard in no wise can be characterized as frivolous, however, in light of this court's disposition of this case, it need not resolve this particular issue." White House Vigil v. Clark, 746 F.2d 1518, 1527, and Exhibit 11.
Appellees knew it would be patently unconstitutional "to prohibit such activities and require that they take place on the Ellipse" outright; it could easily be inferred they decided to accomplish by subterfuge what they could not accomplish outright.
On March 11, 1983, very shortly after he met with Mr. Watt, Mr. Robbins, "the principle drafter," kept "up the good work" by participated in a prearranged scheme -- in concert with agents of the U.S. Park Police, U.S. Secret Service, and D.C. Metropolitan Police -- to remove appellant's then-legitimate signs from the White House sidewalk. The Declaration of William Thomas in Support of the Amended Complaint, November 23, 1988, graphically illustrates the scope of appellees' concerted action, and that no regulation justified the action. CMPLT. para. 76. Exhibit 12.
Appellees did persecute Thomas (Exhibit 12) -- allegedly
through inaccurate testimony -- which ended in a criminal conviction. In that case, thank God, justice finally prevailed, when the District of Columbia vindicated Thomas, holding that:
"Malice ... imports ... the presence of ... an actual intent to cause the particular harm which is produced or harm of the same nature." Thomas v. United States, 557 A.2d 1296 at 1299 (Dist. Col. 1989).
With the vindication of Thomas, a reasonable person must ask, "What was the 'probable cause' of appellees' actions on March 11, 1983?" Appellant obviously wanted the signs on the White House sidewalk; appellees particularly intended to take the signs off the sidewalk, and in their zeal for the "good work," it didn't matter that no regulation justified their concerted effort. CMPLT. para. 76. 10/
Obviously, that argument was not presented in White House Vigil, where the Court decided, "The issue for decision is not factual, it is legal." Id. COMPARE, CCNV, dissent, supra.
Now it seems plain that,
"the ultimate issue in the present case is (appellees') subjective state of mind." Thomas, supra 557 A.2d at 1300,
The question of whether Mr. Robbins, and agents of the Park Police, Secret Service, Metropolitan Police, et. al, were performing as thugs, under color of regulation (CMPLT. para. 76),
10/ With respect to appellee Canfield the District Court "sees no reason to reject the findings" of [then-United States Mmagistrate Burnett])." Huddle Memo pg. 22. Appellant agrees that, at the time it was rendered, Magistrate's findings could have seemed reasonable, but that was prior to Thomas, 557 A.2d.
Now Magistrate Burnett's second Memorandum seems even more reasonable.
"There remains an incredible number of incidents stemming from (appellant's) arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Exhibit 13, pg. 9.
has completely evaded inquiry, and the District Court provides no substantial reason not to examine the incident now.
Surely, the record of this case contains "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1977).
Unfortunately one could easily infer that appellees were not pleased by the fact that appellant managed to maintain his signs and presence in Lafayette Park, a forum "vital to a healthy and robust public discourse." White House Vigil, supra, at 1526.
At least as early as March 5, 1985, fully a year before he participated in the Federal Register publication of 36 CFR 7.96 (g)(x)(B)(2), Mr. Robbins knew the proposed three foot sign attendance regulation was unnecessary, and thus in violation of the Administrative Procedure Act, because
"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." Robbins' letter, CMPLT. para. 82.
Mr. Robbins knew the sign attendance requirement was unnecessary, so in concert with others, he produced an "Administrative Record" -- which appellees represented as too voluminous to submit into the record of the instant case (see Federal Defendant's Motion to Dismiss, December 5, 1991, Memorandum pg. 28, ftn. 12) -- to justify a needless regulation.
On the record, appellant took the position that "the Federal Register publication of the Lafayette Park regulations
was rather lengthy. However, plaintiffs believe that a legitimate judicial analysis of that publication -- for which they now petition this Court -- will reveal (little more than) exaggerations, misrepresentations, and falsehood...." Memorandum in Support of Plaintiffs' Opposition to Federal Defendants' Motion to Dismiss, January 17, 1991, pg. 13, see also Clarification of Complaint, January 17, 1991, e.g., para. 131, Appendix of Exhibits, January 17, 1991, 113-A, and 113-B.
Appellant also objected to this particular "Administrative Record" in oral argument before the District Court. Exhibit 14.
Rather than examine the veracity of appellees' mammoth, as yet unexamined Administrative Record, the District Court opted to rely on stare decisis. United States v. Musser, 873 F.2d 1513. Huddle Memo pg. 20. In Musser, the records show, the Court considered no facts, but relied instead on White House Vigil, supra. Huddle Memo, pg. 20. Infra pg. 18.
"By creating an atmosphere in which individuals would be deprived of the protection of the most Fundamental Laws (i.e., 1st, 4th, 5th, and 9th Amendments) of the United States of America, defendants have wielded Title 36 CFR as a sledgehammer to fracture the foundation of civilization, thus jeopardizing the liberties of each and every person within the legal jurisdiction of the United States and, therefore, the entire structure of democracy." Complaint, October 27, 1989, para. 81.
For example -- in one of the many instances documented in the Complaint which escaped comment by either appellees or the District Court -- on or about November 10, 1986, Lt. Hugh Irwin, acting, under color of Mr. Robbins' allegedly unnecessary sign-attendance requirement, in consort with other agents assaulted
and imprisoned Thomas, without probable cause. Thomas' signs were also seized, without probable cause. Complaint, October 27, 1988, para. 57.
In the beginning the Park Service purported a clear regulatory policy which would allow for "one's participation in a demonstration as a sleeper." CCNV v. Watt, 703 F.2d 586 at 589.
"Plaintiffs maintain that they sincerely want to conduct their demonstrations within the boundaries of legitimate time, place, and manner restrictions.... (Their) letters reveal a sustained effort ... to ascertain the precise meaning ... (of) the regulations in order to avoid criminal sanctions and the concomitant interruption of their expressive demonstration." Thomas v. United States, 696 F. Supp. 707. Tom Dec. paras. 25, 35, 68-71, Ellen Dec. para. 11, March 21, 1991.
The fact that the constitutionality of the regulations is settled does not prevent the appellant from claiming, pursuant to 42 USC 1985(3) and Bivens v. six Unknown Named Federal Narcotics Agents, 483 U.S. 388 (1971), that appellees violated appellants' rights in the manner of enforcing the regulations. Kolander v. Lawson 461 U.S. 352, 360 (1982). 11/ The National Park Service has routinely issued permits which allowed a continuous presence -- including sleeping and possession of certain property. Yet appellant fears that, unless a firm judicial line is established to distinguish legitimate sleep during the course of a vigil from the illegitimate sleep
On the contrary, the record shows, appellants are keenly aware of the judicial history of the regulations at issue. See, Ellen Thomas' Motion to Supplement the Representation of Plaintiffs' Constitutional Claims Against the Regulations at Issue, December 12, 1989. Exhibit 15.
which is a component of a camping violation, he will continue to be subjected to arrests which serve no legitimate purpose, but seriously disrupt his protected activities. TRO, March, 21, 1991.
For example, in perfect chronological order the videotape submitted in support of appellant's March 21, 1991 pleadings documents that, between February 3 and March 7, 1991, Park Police Sgt. Rule had discussed enforcement of the "camping" regulation with Mr. Robbins. Compare, Did the Court View the Complaint in the Light Most Favorable to Appellant, supra pgs. 7, 8.
Yet, the tape reveals that Sgt. Rule progressively and arbitrarily defined "camping" as: "sleeping for longer than two (2) hours" "sleeping longer than one (1) hour," and finally that merely sitting on a blanket would be "cause" for a "camping" arrest. CMPLT. paras. 46-53. Although Sgt. Rule agreed, "24-hour vigils are permitted, there's no question about that" (CMPLT. para. 47), he stated that appellant was "calling it a 'vigil,' I'm calling it 'camping'." CMPLT. para. 49, Video @ 48.03. When pressed to clarify the difference, Sgt. Rule said, "We're not going to argue that here, we'll argue it in court." Video @ 45.l7. compare, supra, pg. 4.
Subsequently, on March 1st Scott Galindez was arrested, purportedly for "camping." The arresting officer stated that she did not want to make the arrest, but had to follow orders. The officer also said that "it's just a game. (A)ll they wanted was to get people out of" the park. CMPLT. para. 54, Video @ l0l.50-l02.25, Declaration of Allen Tubis. And Concepcion was repeatedly threatened with arrest without probable cause. CMPLT.
paras. 54-57, Video @ l09.04.
"(T)here are facts in the record of this case that raise a substantial possibility that the impetus behind the (enforcement of the camping) revision may have derived less from concerns about administrative difficulties and wear and tear on the park facilities, than from other, more 'political' concerns.... (T)here was evidence readily available that should have impelled the court to subject the government's restrictive policy to something more than minimal scrutiny." CCNV v. Clark, 468 U.S. 299, 315 (1984), J. Marshall, dissenting.
The foregoing instances from which appellant believes a conspiracy might be inferred remained unexamined. Instead, it appears, the District Court relies on an abstract legal theory posited on the notion that any factual allegations appellant may raise must yield to stare decisis, as interpreted from CCNV v. Clark, supra; White House Vigil v. Clark, supra; United States v. Musser, 873 F.2d 1513; and Thomas v. United States, 696 F. Supp. 55 (dismissed without prejudice, 1989). Huddle Memo, pg. 20. It also appears that the District Court just ignored those factual allegations in realms where stare decisis is silent.
"Whether this is all steam, or whether there is some substance depends on the proof offered either at trial or on motion for Summary Judgment demonstrating that there is no controversy." A.H. Richland v. Harper, 302 F.2d at 326.
Upon the foregoing discussion, appellant suggests that this Court would best serve by denying federal appellees' Motion for Summary Affirmance.
William Thomas, appellant
2817 11th Street N.W.
Washington, D.C. 20001
No. 91-5304 SEPTEMBER TERM,1991 Mary Huddle, et. al., CA No. 88-3130 Appellants v. Ronald W. Reagan, et. al., Appellees.
I, William Thomas, hereby certify that, on November 27, 1991, a true copy of Opposition by Appellant William Thomas to Federal Appellees' Motion for Summary Affirmance was served upon Robert L. Shapiro, Assistant U.S. Attorney for the District of Columbia, by mailing it first class U.S. mail, postage pre-paid to Judiciary Square, 555 4th Street NW, Washington, D.C. 20001, and upon Victor Long, Assistant Corporation Counsel for the District of Columbia, by mailing it first class U.S. mail, postage pre-paid to 1350 Pennsylvania Avenue, NW, Room 314, Washington, D.C. 20004.
William Thomas, appellant
2817 11th Street N.W.
Washington, D.C. 20001