No. 91-5304                                 SEPTEMBER TERM,1991
Mary Huddle, et. al.,                         CA No. 88-3130


Ronald W. Reagan, et. al.,

BEFORE: Mikva, Chief Judge; Edwards and Ruth B. Ginsburg, Circuit Judges


Pursuant to Federal Rule of Appellate Procedure 40, appellant William Thomas hereby moves this honorable Court to rehear his opposition to the federal appellees' motion for summary affirmance, and to reverse the Order filed June 26, 1992, which granted the federal appellees' motion for summary affirmance.

The points of law and fact which in appellant's opinion has be oerlooked or misapprehended by the Court are specificaly set forth in the accopanying memorandum in support of this motion.

Respectfully submitted,

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


I, William Thomas, hereby certify that, on July 2, 1992, a true copies Appellant's Motion for Rehearing were hand delivered to Robert L. Shapiro, Assistant U.S. Attorney for the District of Columbia, at Judiciary Square, 555 4th Street NW, Washington, D.C. 20001, and to Victor Long, Assistant Corporation Counsel for the District of Columbia, at 1350 Pennsylvania Avenue, NW, Room 314, Washington, D.C. 20004.

William Thomas, appellant


On June 26, 1992 this Court filed an unpublished Order granting the federal appellee's motion for summary affirmance of the District Court's dismissal of the complaint in this matter.

On June 30, 1992 this Court (Wald, Edwards, and Williams, Circuit Judges) decided the case of United States v. Jane Doe a/k/a/ Diana Nomad, U.S. App. No. 91-3111, Slip op. ("Nomad). Appellant moves for rehearing upon consideration of the Opinion in Nomad.


It shoul be recognized that there is a strong factual link between the law in Nomad and the instant case. First, appellant Thomas was "'part of the group' of demonstrators beating the drums," who, including Diane Nomad, were arrested on January 25, 1991. Nomad, slip op. 3, compare, Complaint In Support of Plaintiffs' Motions to Renew and Amend Their Motion for Temporary Restraining Order and Preliminary Injunction ("CMPLT."), filed March 2, 1991, para. 19. Therefore it is logically inescapable that the legal standards presented in Nomad would apply equally to the drumming incidents alleged in this case.

Under the circumstances presented in Nomad, however, the Court did not reach the argument that there was insufficient evidence to convict her, or that the eistrict court erred in denying her motion for acquittal." Id. Slip Op. pgs. 3, 10.


Unlike Nomad, the instant case springs from a claim of "prosecution because of (appellants') message." E.g., Opposition of William Thomas to Federal Appellees' Motion for Summary Affirmance, pgs. 1-2; Opposition of Concepcion Picciotto to Federal Appellees' Motion for Summary Affirmance, pg. 1; Opposition of Ellen Thomas to Feeral Appellees' Motion for Summary Affirmance, pgs. 1-2.

No one may dispute "that Lafayette Park is a 'quintessential public forum,' see White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27 (D.C. Cir. 1984)." Nomad, Slip op., pg. 2.

"By no reasonable measure does Lafayette Park display the characteristics of a setting in which the government may lay claim to a legitimate interest in maintaining tranquility." Nomad, Slip op., pg. 6

"(T)he government's ability to permissibly restrict expressive conduct (there) is very limited." United States v. Grace, 461 U.S. 171, 177 (1983; see, Hague v. CIO, 307 u.s. 496, 515 (1939)." Nomad, Slip op., pg. 3.

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.

Appellants alleged that appellees knew beating a drum in the context of an anti-war demonstration was expressive conduct on January 27, 1991, when appellees, acting in concert began a pattern and practice of enforcing 36 C.F.R. 2.12 and Title 22 D.C. Code, Section 1121. CMPLT. para. 20.


"There can be no question that beating a drum in the context of a clearly identified anti-war demonstration is expressive conduct protected by the First Amendment. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Texas v. Johnson, 491 U.S. 397 (1989)." Nomad, slip op. pg. 3.

Nonetheless, uner color of the regulation at 36 C.F.R. 2.12 and the District of Columbia Statutes, appellant Thomas suffered three baseless arrests and incarcerations. 1/

This unjustified regulatory enforcement was directly supervised by appellee Robbins, who bears official for advising t he Park Police on the constitutionality of C.F.R. enforcement in First Amendment contexts, and directly of discourage, disrupted, and terminated peaceful expression. CMPLT. paras. 13, 15, l8, l9, 20, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87 & Count 17.

These three arrests alone should be sufficient to exemplify the District Court's error in holding that "'(e)ach plaintiff points to a single instance -- his or her own arrest 2/ -- as illustrative of the alleged unlawful pattern...." Memorandum Opinion, May 24, 1991 ("Huddle Memo") pg. 20.

In light of the decision in Nomad it is apparent that the

1/The "SUB-CONSPIRACIES" listed in appellant Thomas' Opposition to Federal Appellees' Motion for Summary Affirmance are only examples. Two more examples occurred during the same immediate time frame, on February 2 and 3, 1991, when appellees' agents seized lawful signs and literature and incarcerated Picciotto and Thomas. CMPLT. paras. 22-27. Those charges were dismissed. Many other incidents are innumerated in appellants' various pleadings.

2/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.


District Court erred in holding that "(t)his is not a case in which the federal defendants were acting pursuant to patently unconstitutional regulations." Hudddle Memo pg. 19.

Appellant asserts that his three arrests for drumming and "disorderly conduct" by themselves would be sufficient to state a claim under both 42 USC 1985(3) and U.S.C. 1983.

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). 3/

Certainly these are more than "conclusory allegations," and demonstrate appellees' "participation in a common and unlawful plan whose goals are known to all members." Huddle Memo pg. 12, citing Hobson v. Wilson, 737 F.2d 1, 55 (1984).

3/ 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.


Contrary to the District Court's opinion, and particularly in a "light most favorable to plaintiffs," President Bush's personal connection with an pubblic comment on the drumming incidents would, in itself, have been taken "to demonstrate federal defendants' discriminatory animus." Huddle Memo pg. 12.

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.

Another token example of facts in dispute, which also illustrates the interconnectedness of Nomad and the instant case, is indicated by this Court's reference to "Tr. at 81-82" (Nomad, slip op. pg. 9), where Sgt. Rule (CMPLT. paras. 46-54) testified to his belief that the decibel level of electrical generators in Lafayette was "62 Decibels." In contrast appellant Thomas testified (Tr. at 70) that at the time Sgt. Rule stated the noise level of the generators was 72 decibles. The actual noise produced by the specific generators in question would be reaily susceptible to determination in a trial of fact.

Given the factual relativity of this case to Nomad, and given this Court's ruling that the application of 36 C.F.R. 2.12 in Nomad violated "First Amendment rights to engage in expressive conduct" (i. slip op. 2), for the court to maintain an impression of consistent and credible logic it becomes necessary to apply the same logic to this case as was applied in the Nomad


case; to do otherwise might seem unjust as well as increible. Under the logic of Nomad it becomes plain that appellant Thomas' arrests and incarceration for purportedly violating 36 C.F.R. 2.12 also violated "First Amendment rights to engage in expressive conduct." Consequently it also becomes plain that appellant has stated a claim under 42 U.S.C. 1985(3), and also, considering that District of Columbia regulations were also implicated in appellant's arrests, 42 U.S.C. 1983.


In light of the Court's decision in Nomad it seems apparent that the District Court erred in holding that appellant's complaint failed to state a claim, and, therefore, this "Court should reverse its decision to grant federal appellees' motion for sumary affirmance.

Respectfully submitted,

William Thomas
P.O. Box 27217
Washington, D.C. 20038