"Plaintiff lists each defendant and each act allegedly undertaken by that defendant in furtherance of the alleged conspiracy. This detail provides defendants with the definite statement required by Fed. R. Civ. P. 8." Thomas II, Order, June 5, 1986. App. p. 61.
"Turning first, now, to the camping allegations, let us make some findings of fact. We are in an area where a vigil protected by the constitution 11/ and by a governmental permit has been taking place [since June 3, 1981].
11/ Petitioners' vigil is entitled to full constitutional protection. In pertinent part, 36 CFR 7.96(g)(1) provides:
As recently as March 5, 1985 the Park Service explicitly claimed that it had no desire to "preclude continuous vigils." Fed. Reg. Vol. 51, No. 42, page 7559.
"(g) Demonstrations and Special Events....
(1) 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."
It is a vigil that was described in the testimony of the government witnesses as, quote, the Thomas Vigil, end quote." Transcript, United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 85-255, ps. 1014, 1015, September 25, 1985 [brackets substituting]. App. ps. 134, 135.
"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." CCNV v. Watt, 703 F.2d 589.
fashioning another regulatory scheme in pursuit of the same objective, strengthening the logical inference that in respondents' minds they were pursuing an ongoing plan.
"The photographs contained in the administrative record depict the activities of certain long-term demonstrations on the White House sidewalk, ... and when the government witnesses testified about the conditions on the sidewalk that prompted these regulations they referred specifically to these same long-term demonstrators....
"Many of the exhibits offered by the government appear to be unrelated to (the White House sidewalk) regulations. For example, the government introduced into evidence numerous Park Police reports concerning demonstrators 'camping' on the White House sidewalk, which is not a subject addressed in the regulations. In addition, the 'camping' problem was cited as prompting discussions on these regulations. In fact, other regulations, not in issue, address the camping problem....
"Additionally, plaintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere coincidence.
"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, USDDC CA. No. 83-1243, Memorandum Opinion, April 26, 1984, J. Bryant, ps. 11-15, Record, Docket # 45, Exhibit 69, App. ps. 159-163.
when the Circuit Court concluded, "the issue for decision is not factual, it is legal" (White House Vigil, 476 F.2d 1518, 1528, 1529), and the District Court is mistaken when it relies on White House Vigil to foreclose judicial review of the broader instant Complaint. Huddle Memo, p. 20.
"two individuals who have in the past and are presently maintaining a daily demonstration in front of the White House." Id.
"(A) handful of demonstrators has occupied the White House sidewalk daily for a year and a half." Fed. Reg., June 17, 1983, Vol. 48, No. 118 (Record, Docket # 45, Exhibit 78), p. 28053.
"to the availability of Lafayette Park, the Ellipse and the Mall as alternative sites for (petitioners') activities." Record, Docket #45, Exhibit 69, J. Bryant, p. 27. App. p. 178.
expression in appropriate places abridged on the plea that it can be exercised in some other place" (Schneider v. State, 308 U.S. 147 (1939)), respondents manipulated the facts (infra, p. 28-31, 47) until the Circuit Court agreed that the alternative across the street was sufficient. White House Vigil at 1528.
"(o)ver the past two years, two to six demonstrators have accounted for a vast majority of the ... signs that continuously occupy ... Lafayette Park.
"One of these signs indicated that ... the ... signs belonged to two persons who had been in the Park since June of 1981." Fed. Reg., August 20, 1985, Vol. 50, No. 161 (Docket, Docket # 45, Exhibit 129), p. 33572.
"The ACLU specifically questioned the motives of the National Park service in promulgating these regulations, suggesting that the sole purpose for the amendments is to harass certain individuals now demonstrating in Lafayette Park. To support this proposition, the ACLU attached to its comments several affidavits by Concepcion Picciotto, a long-time demonstrator, that alleged ... the Park Service is allowing private citizens to destroy demonstrators' signs." Id. p. 7560.
summation of an "investigation" in the Federal Register. Id.
"(O)ver the past three years the National Park Service has received at least five written requests for some action against the visual blight in Lafayette Park. Typical of these complaints is the following....
"(I) am not happy when I am forced to pass by, and am forced to see ... the people who camp and live in Lafayette Park ... in exercise of their rights of political dissent'." Fed. Reg., October 4, 1990, Vol. 53, No. 193, p. 40680. S. CMPLT. Ex. 22.
"[W]e expect that the relationships between the actors and the actions (... the duration of the actors' joint activity) are relevant in inferring an agreement in a civil conspiracy." Halberstan v. Welch, 705 F.2d 481 (parentheses in original).
"1) a conspiracy; 2) for the purpose of depriving... any person ... of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is
either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Hobson v. Wilson, 737 F.2d 1, 14.
"Plaintiffs alleged in their complaint that from [1981 to date] defendants engaged in a variety of legal and illegal activities in a specific effort 'to disrupt and interfere with the plaintiffs' [religious and] political activities, including urging violent or unlawful actions, and supplying the public and or news media with false information about the plaintiffs and their plans.' Plaintiffs also alleged that 'some or all of the activities of defendants' were conducted pursuant to a plan ... which they contended, was 'designed to conduct surveillance upon and to cause disruption of the activities of what the defendants regarded as the ["Thomas Vigil"].' Plaintiffs claimed that because these actions were undertaken expressly to disrupt their lawful activities, they violated, inter alia, plaintiffs' First and (Fourth) Amendment rights.
"The extraordinary nature of these charges makes this an easy case. Whatever authority the Government may have to interfere with a group engaged in unlawful activity, and however it may be permitted to impede or deter rights of lawful association as a by-product of legitimate Government actions, it is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations." Hobson at 27 [substituting], emphasis in original, see also, Dombrowski v. Pfister, 380 U.S. 479, 482.
Petitioner William Thomas' arrest record. Even assuming respondents were correct with respect to Thomas' convictions -- which, in light of "Defendant's Exhibit 4" (Huddle Memo, p. 4, ftn. 4, also infra p. 38, supra p. 10-11) is impossible -- it was pointed out that germaine questions escaped review even in cases that resulted in convictions.
""(Thomas) alleged that a police officer was kicking (him) in the head, for example. The police officer got on the stand and admitted that he was kicking (Thomas), but he said he was kicking (Thomas) in the foot. Judge Oberdorfer didn't quarrel with the fact that the police officer was kicking (Thomas), but he never determined where the police officer was kicking (Thomas) or what the circumstances (were)." See, Docket # 45, Exhibit 84, Declaration of William Thomas, compare Exhibit 85, testimony of Officer Sherba, United States v. Thomas USDC Cr. 83-243; also App. p. 98.
"(T)he bald assertions of the federal defendants that no conspiracy existed to deprive plaintiff of his First Amendment rights, that probable cause always existed to arrest him and seize his signs, and that a minimum amount of force was always utilized in effectuating plaintiff's arrests, are not sufficient to rebut his detailed allegations, supported by several affidavits and declarations, that he was unlawfully deprived of his constitutional and civil rights." Mag. Memo, App. p. 50.
"(b)y creating an atmosphere in which individuals would be deprived of the protection of the most Fundamental Laws (i.e., 1st, 4th, 5th, 9th and 14th Amendments); 42 USC 1983, 1985(3)(4), and 1986; and the Administrative Procedures Act 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, see also, S. CMPLT. e.g., Counts Twenty-Nine, Thirty .
"plaintiff's signs were 'broken up with sledgehammers by Park Service employees under the supervision of Park Police' on June 23, 1984." Mag. Memo, App. p. 49.
depicting Respondent Irwin applying a chokehold to Petitioner William Thomas' neck (App. ps. 179, 180), in one of the many incidents which never went before a factfinder.
"(W)hat the government has done is to deprive us of any protection from the police. They have passed these regulations... (I)f we're given the opportunity to get to the facts, we'll show that the regulations have been selectively applied 12/ against us... (B)ecause the regulations give the impression that we're criminals, the police officers behave in a way that they wouldn't normally behave towards us. We would like to hope -- to think they wouldn't normally behave that way." App. p. 118.
12/ The District Court limited its discussion of selective enforcement to the Presidential Inauguration, (Huddle Memo, ps. 19-21), but neglected to comment on other examples contained in the Complaint, which had been at issue for years. E.g., App. p. 291.
13/ This matter was initially filed as a class action. However, owing to their failure to comply with D.C. Local Rule 203(b), petitioners abandoned that claim on appeal. See, Record, Opposition by Appellant William Thomas to Appellees' Motion for Summary Affirmance, p. 1, n. 1, filed November 27, 1991.
one might also infer that, together with Respondent Robbins, and others, the President conspired to silence the drums, and that his "hyperbole" was actually a lie intended to engender public animosity against petitioners and drum up sympathy for the conspirators' wrongful assault on the Constitution.
"(Respondents) must do more than simply show that there is some metaphysical doubt as to the material facts." Frito-Lay v. Willoughby, 863 F.2d 1029, 1034.
"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). See, IMPORTANCE OF THE CASE, infra, p. 55, 59.
"(M)any of the issues raised in plaintiffs voluminous pro se complaint cannot be resolved by the pending motions. At a hearing held on May 8, 1985, plaintiff identified several claims that implicate concerns going beyond whether DOI's regulations are constitutional." Thomas II, (USDC CA. 84-3552) Order, June 3, 1985, App. ps. 56-57, also, App. ps. 61-62.
"(i)n March 1983 Watt received a briefing from the principal drafter of the new regulations and told him to 'keep up the good work' ...." White House Vigil v. Clark, 746 F.2d 1518, 1527.
"I was summoned down there by the officials of the Uniformed Secret Service and by members of the United States Park Police to address a problem they were encountering with a protester...." Record, Docket # 45 Exhibit 49, April 8, 1983, Grand Jury testimony of Respondent Canfield (App. ps. 184-185), compare, Docket # 45 Exhibit 50, testimony of Park Police Lt. Merrillat (App. ps. 186-187).
"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." Record, Docket # 45, Exhibit 69, App. p. 163, see also, White House Vigil at 1527.
"The Park Police originally tried to get the U.S. Attorney to paper the case as arson, but the papering people refused.... According to AUSA Dan Cisin ... the Park Police left, then came back about an hour later and cornered the chief papering assistant in an office for an hour and a half until the AUSA agreed to paper the case as a felony destruction of
property -- the White House gate, just to get rid of them...." Record, Docket #45, Exhibit 60. Public Defender Memorandum. App. ps. 209-210.
"Malice ... imports ... the presence of ... an actual intent to cause the particular harm which is produced or harm of the same nature." United States v. Thomas, 557 A.2d 1296, 1299 (Dist. Col. 1989) ("Thomas III").
aa) RESPONDENTS ARE NOT ENTITLED TO OFFICIAL IMMUNITY
findings with respect to respondent Canfield's involvement in the events of March 11, 1983 seemed reasonable. Huddle Memo pg. 22. But that was prior to the decision in Thomas III in April, 1989.
"'If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct....' (T)he Government actor is presumed to have known about it, unless he can bring forward undisputed facts establishing that because of extraordinary circumstances he neither knew nor should have known of the unlawfulness, summary judgment in his favor must be denied." Hobson, 25, citing Harlow v. Fitzgerald, 457 U.S. 800, 818.
"(A)n official would not receive qualified immunity if he 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff] or if [the official] took the action with the malicious intention to cause a deprivation of constitutional rights or other injury'." Hobson, at 24, citing Wood v. Strickland, 420 U.S. 308 at 322.
14/ When prosecuting Thomas, respondents argued that petitioners' "signs" were "structures." In fact the largest sign (App. p. 204), was retrieved by petitioners and returned to the White House sidewalk because "it didn't violate regulations" (App. ps. 211-212), until the respondents promulgated the White House sidewalk regulation on July 19, 1983. See also, CoC, para. 64.
on March 11, 1983. 15/ Hence, "the ultimate issue in the present case (now becomes respondents') subjective state of mind." Thomas III, 557 A.2d 1296, 1300 (substituting).
"(T)he 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." Docket # 45, Exhibit 126, App. ps. 213-214.
15/ Thomas III dealt exclusively with respondents' allegations, and did not even begin an inquiry into petitioners' instant claims.
"Who is William Hale? ... Some people have suggested that William Hale might have been a Government agent. I don't know....
"Mr. Robbins might know who Mr. William Hale is, because Mr. Robbins included all of William Hale's permit applications into the Administrative Record. There's dozens and dozens of police reports about William Hale in the Administrative Record. Who is William Hale? William Hale is the individual that the Government relies on for the latest of these three regulations, and without William Hale, (this) regulation (is) baseless." App. pgs. 115-117.
"(t)he rule is ... tailored to serve the substantial interest in the security of the White House, high government officals and the public." Musser, 1517-18.
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