No. 91-5304
CA No. 88-3130

Mary Huddle, et. al.,                          Appellants


Ronald W. Reagan, et. al.,                     Appellees.


On December 4, 1991 Federal Appellees filed a Reply Brief on Their Motion for Summary Affirmance ("Reply). Although, "in the interests of clarity," Appellees assert, "only two issues warrant a reply" (Reply at 13, in reality they mention several issues, raised by appellant, but do not accurately "reply" to any.

First, in their Motion for Summary Affirmance ("Motion") Federal Appellees initially assumed the position that, with respect to 55 Fed. Req. No. 193 at 40879, "counsel (could) locate no such publication, and (did) not know to what appellants (were) referring." Motion at 8, ftn. 4.

Now, having apparently located 55 Fed. Reg. 40879, despite the fact that appellant's Opposition specifically referenced where that regulation was cited in the pleadings below (See, Appellant's Opposition at 5, citing the Supplemental Complaint, filed March 21, 1991, Count Thirty-three), counsel is content with the insinuation, "(n)either regulation is cited in plaintiffs' amended complaint."

Second, "with respect to 36 CFR 2.12 ... (a)ppellees' counsel (was) unaware of any allegations relating to this regulation." Motion at 8, ftn. 4, compare, Appellant's Opposition at 6, citing the Supplemental Complaint, filed March


21, 1991, Count Seventeen). Appellees' Reply muddles, rather than "clarifies," the record with the stark, but incorrect representation that "these regulations 1/ are similar to other regulations proscribing certain activities in Lafayette Park."

In fact, while most 2/ of the other regulations at issue here are codified at Title 7 (seven) of the CFR 3/, and some of shone regulations do indeed "proscrib(e) certain activities in Lafayette Park'" 36 CFR Title 2 (two).12 4/ makes absolutely no mention of "Lafayette Park." More importantly, considering that appellant was arrested -- but never charged --for violating 36 CFR 2.12, there is just no reason to assume that the regulation proscribed the activities for which appellant was arrested, or that the arrests were -- as alleged -- anything more than "acts in furtherance of a conspiracy."

Third, appellees merely reiterate their insistence

1/ Of course, it is unquestionable that 55 Fed. Real 40879 is not "a regulation."

2/ It should be noted that, notwithstanding counsel's professed desire for clarity, appellees still have not attempted to address appellant's claims regarding 22 D.C. Code Section 1121(3). Appellant's Opposition at 6, see, the Supplemental Complaint, filed March 21, 1991, Counts Seventeen and Twenty-three.

3/ 36 CFR Title 7, deals specifically with Parks in the District of Columbia, with particular emphasis on demonstrations.

4/ There is nothing in the record of this case to suggest that Section 2.12, which prohibits noise in excess of 60 decibels, was ever before enforced within the District of Columbia, where the background noise level usually exceeds 60 decibels. Declaration of William Thomas, March 21, 1991, pare. 74. Moreover, the rulemaking proposal behind 36 CFR 2.12 made a clear policy statement to distinguish those "devices ... utilized in the exercise of First Amendment rights from those devices which are merely noise-producing." 47 Fed. Reg 11603, see, Supplemental Complaint, filed March 21, 1991, pare. 20, and Exhibit 7.


"appellants failed to meet the heightened pleading standard under Martin v. Malhoyt." Reply at 1. Counsel makes absolutely no attempt to reply to appellant's detailed position on this issue. See, Appellant's Opposition, pgs. 9-18.

Fourth, appellees simply repeat, "the District Court ... found that ... there is no indication that ... appellees' treatment of appellants was improperly motivated" (Rely at 2), without replying to appellant's specific argument to the contrary. Appellant's Opposition at 8, citing Hobson v. Wilson 737 F.2d 1, 15; Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3352.

Fifth, and again without amplification, appellees echo their opinion that, "the District Court clearly considered ... and rejected appellants' ... claim for sanctions." Reply at 2. In appellant's opinion his Opposition on the Issue of Sanctions, filed in this Court on November 25, 1991, shows that the request for sanctions was anything but "frivolous." 4/

Putting the litigants' opinions aside, however, it must be obvious to any marginally literate person that the District Court's terse opinion dismissing the motion for sanctions identifies no supporting reason. District Court's Memorandum, filed May 24, 1991 at 24, ftn. 20.

If words have some valid meaning, appellant suggests, then the District Court's short, written opinion on the issue of

4/ In light of the District Court's repeated finding that appellant's claims were "not frivolous" (see Orders filed September 4 and 11, 1991), appellees' characterization of appellant's claims should be seen as disingenuous and pejorative.


sanctions cannot be meaningfully described as "clearly considered" (Reply at 2), but, given fair meaning, should be considered "cryptic " Sills v. Bureau of Prisons, 761 F.2d 792, 793.

Respectfully submitted,

William Thomas, appellant
2817 11th Street N.W.
Washington, D.C. 20001


I, William Thomas, hereby certify that, on December 10, 1991, I served copies of the Appellant's Response to Federal Appellees' Reply to Appellant's Opposition to Federal Appellees' Motion for Summary Affirmance by mailing it first class U.S. mail, postage pre-paid to:

AUSA Robert L. Shapiro
Judiciary Square
555 4th Street NW
Washington, D. C. 20001

, and to

Victor Long
Assistant Corporation Counsel for the District
1350 Pennsylvania Avenue, NW, Room 314
Washington, D. C. 20004

/s/ W.

William Thomas, appellant
2817 11th Street N.W.
Washington, D. C . 20001