Petition for Certiorari


"(F)irst Amendment rights ... certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence...." Brown v. Louisiana, 383 U.S. 131; also, Watson v. Memphis, 373 U.S. 526 (1962); Shuttlesworth v. Birmingham, 382 U.S.


87, 90-91 (1965); Wright v. Georgia, 373 U.S. 284, 291-293 ; Johnson v. Virginia, 373 U.S. 61; Taylor v. Louisiana, 378 U.S. 154; Warner v. Louisiana, 368 U.S. 157, 174 (1961).

In religious service to their moral and spiritual beliefs each petitioner has maintained a symbolic "continuous presence" ("vigil") in Lafayette Park. As illustrated by various newspaper articles, appended to petitioners' pleadings, it was not disputed that the message of petitioners' symbolic vigil was likely to be understood by onlookers. E.g., S. CMPLT., para. 71, App. ps. 215-216.

"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 II at 707, see also, Record, Declarations in support of S. CMPLT. by William Thomas, paras. 25, 35, 68-71, and Ellen Thomas, para. 11, March 21, 1991.

This precise continuous "demonstration" began one year and one day prior to the promulgation of the "camping" regulation. The National Park Service has routinely issued permits 16/ which allowed a continuous presence -- including sleeping and possession of certain property. See, Thomas II, 712-716; United States v. Abney, 534 F.2d 984.

16/ In pertinent part 36 CFR 7.96(g)(2)(i) provides that:

"Demonstrations involving 25 persons or fewer may be held without a permit provided that the other conditions required for the issuance of a permit are met...."


The complaint does not challenge the constitutionality of the "camping" regulation. 17/ Rather it addresses the pattern of enforcement.

"The fact that the constitutionality of the regulations is settled does not prevent petitioner from claiming, pursuant to 42 USC 1985(3) and Bivens v. Six Unknown Named Federal Narcotics Agents, 483 U.S. 388 (1971), that respondents violated petitioners' rights in the manner of enforcing the regulations." App. p. 57.

The District Court states it "reviewed the tape thoroughly for, inter alia, any evidence of a conspiracy to suppress plaintiffs' First Amendment rights," but apparently overlooked petitioners' clearly stated purpose in submitting the videotape.

"(B)etween February 3 and March 5, 1991, defendants, in the person of Sgt. Rule, altered the definitive element of 'Camping' from 'two hours of sleep,' to 'less than two hours of sleep,' to 'sitting on bedding,' until Concepcion was eventually threatened with arrest while only sitting on a piece of cardboard;

"(and) the tape records Sgt. Rule admitting collaboration with defendant Robbins in 'camping' regulation enforcement." Record, Docket # 97, Declaration of William Thomas, App. p. 226.

Additionally, the videotape identified the police officer who stated she "had been instructed" to make an arrest, and "it's just a game.... (A)ll they wanted was to get people out of" the park. See, App. p. 235; S. CMPLT. para. 54; Video @

17/ But it is significant to note that members of the reviewing Circuit Court panel noted the regulation had a "high potential to produce bad law." CCNV v. Watt, 730 F.2d 600, 605 J. Ginsburg, J. Edwards' concurring, see also, id., 601, J. Mikva, writing a separate concurring opinion. The Supreme Court was also split as to the wisdom and honesty of the "camping" regulation.

"(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." Clark v. CCNV, 468 U.S. 299, 315 (1984), J. Brennen and J. Marshall, dissenting.


101.50-102.25; and Supra, p. 16-21; compare, infra, p. 57 IMPORTANCE OF THE CASE, J. Bryant.

It can be inferred from the facts presented that respondents had planned out a "game" to arrest petitioners for "sleeping," which they should have known was not "camping."

"[N]o one of the exemplary indicia (for example, 'sleeping activities') can be considered in isolation, either from the others or from the actual circumstances in which the activity is conducted." United States v. Thomas & Thomas, 864 F.2d at 196 (parentheses in original).

Unless legitimate sleep during the course of a vigil is distinguished from the illegitimate camping, petitioners will continue to be subjected to arrests which serve no legitimate purpose, but seriously disrupt their protected activities.


"The Plaintiff is entitled to all favorable inferences which may be drawn from [the] allegations. Scheuer v. Rhodes, 416 U.S. 232, 236." Huddle, Memo, pg. 7.

Petitioners submit that the District Court violated this axiom in assessing the pleadings of this case, and that the Court's departure from this standard is reflected in its assessment of the videotape. See also, infra, pgs. 41-50, THE LOWER COURTS ERRED IN FAILING TO CONSIDER THE COMPLAINT CAREFULLY.

"(W)hat the Government is suggesting is that the Court should not hear our allegations on the basis of law. And I'm saying that there are facts here that have never been established. And it seems to me that the Government's legal arguments fail on that basis....
"I think that reason and logic and truth and all of the things that I believe the framers of the Constitution were pushing for strongly suggest that the Court should listen to all the facts in this case." App. ps. 99, 100.


a) Who is Telling the Truth?

Defendant's Exhibit 4 stands on the threshold of the veracity question, and, petitioners submit, it is not only a strong indication of who is telling the truth, but also that the District Court exercised undue prejudice, most unfavorable to petitioners, in assessing respondents' pleadings.

Exhibit 4, appended to Federal Defendants' Motion to Dismiss (Docket # 34), was entitled "Arrests of William Thomas" (supra, p. 10), and purported that Thomas was arrested "at least 25 times, and convicted at least 14 times." Magistrate Burnett, on the other hand, noted that by Thomas' "reckoning only seven arrests resulted in conviction." App. p. 38, ftn. 3. 18/

On January 3, 1989, petitioners filed a Motion to Strike (Docket #36) Exhibit 4. Petitioners' grounds were that Exhibit 4 would not further "the end that truth may be ascertained (Fed. R. 102)," that it would "confuse the issues (Fed. R. 403)," that it could not be authenticated (Fed R. 803 and 902), and that it was factually incorrect. Fed. R. 104(b).

That motion was finally granted. Huddle Memo, p. 4, ftn. 4.

Paradoxically, in dismissing this case the District Court still relies on the vague notation that "plaintiffs have ... been arrested and sometimes convicted." Id. ps. 3, 4.

18/ This reckoning was prior to the reversal of Thomas III, supra, and a number of arrests, which occurred after the Magistrate issued his Memorandum, and were at issue in this case, but not mentioned in Defendants' Exhibit 4. Thomas now estimates the actual total to be at least 32 arrests and only six convictions.


b) Chronological Precision or Judicial Precision?

The District Court writes, "the videotape exhibit ... does not proceed chronologically." Huddle Memo, p. 13.

Without even viewing the videotape the chronology can be ascertained from the cross-referenced Video Index. App. ps. 228-232.

In fact there can be no question that 1) the tape is divided into three distinct segments ("Sign seizures," 000.00-022.29; "Violence," 022.30-044.57; 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 factually insubstantial, departures -- interposed for heightened clarity -- from perfect chronological order (057.14-58.25 and 105.50-106.25). To establish this fact, one need only view the videotape.

With the question of factual accuracy so plainly defined the District Court erred in not holding a hearing to determine who was not telling the truth.

c) Victims or Victimizers?

"As is apparent from the videotape ... plaintiffs are shown resisting arrest. [And] ... were not complying with the regulation that prohibits camping." Huddle Memo, 18.

The simple facts are that throughout the period documented on the videotape, a) none of the petitioners was convicted of violating any regulation, b) none of the petitioners was even accused of resisting arrest, and c) with the exception of the disputed arrests of Love and Galindez -- who were not convicted -- none of the


petitioners was even charged with "camping."

For the court to have leapt to the conclusion that petitioners were "resisting arrest," and "not complying with the camping regulation," when there is absolutely no evidence of such violations outside of the court's interpretation of the tape, was quite unfavorable to petitioners. Again, Magistrate Burnett had the most accurate perception.

"It is not for the (court) at this stage to determine credibility as to where the truth lies. It is sufficient to conclude that appellate precedent requires a trial because there are material issues of fact in dispute." App. p. 52. 7, p. 17.

d) Who Goaded Whom?

It seemed to the District Court as if "plaintiffs" had "goaded the police." Huddle Memo, pg. 13. But the court memorialized no specific basis for its speculation.

Perhaps the District Court thought petitioners were "goading" when they pressed for clarification between a "vigil" and "camping." Sgt. Rule said, "We're not going to argue that here, we'll argue it in court." Video @ 45.l7. As the Record shows, although they should have been, these issues never were argued in court, as Sgt. Rule promised.

Petitioners assert that a jury viewing the tape and weighing the testimony and demeanor of witnesses might well conclude that plaintiffs "goaded" defendants as mice might "goad" cats.

At same time, "although plaintiffs may have documented .. instances of seeming misconduct ... the Court cannot discern what prompted the defendants' response." Huddle Memo, pg. 14.


Yet, petitioners informed the Court (App. p. 222) 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." These examples make it difficult to understand how the Court liberally construed respondents' "seeming misconduct" in favor of petitioners.


Although the District Court states it "considered each allegation raised by plaintiffs in each filing" (Huddle Memo, pg. 6), the Record contains nothing to suggest that the District Court gave any consideration to several pivotal issues. This oversight is patently at odds with various well established decisions in which the D.C. Circuit 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 law.' In re Pope, 679 F.2d 931, 934 (DC Cir.1982); (other cites omitted)." 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 (1982).

At least the court in Sills explained its dismissal with a "cryptic notation on the face of the complaint." 19/ Id at 793. Here, there was not even a cryptic notation to explain the Court's dismissal of several most pertinent allegations:

19/ Unlike the situation in Sills, the District Court here pointedly held that this appeal was not frivolous. Huddle, Orders, September 4 & 11, 1991. App. ps. 236-239.



Neither the lower courts nor respondents made the slightest reference to the groundless arrests of petitioners Picciotto and William Thomas, the seizure of their signs and literature, and the resulting disruption of their expressive activities on February 2 and 3, 1991. S. CMPLT, COUNT TWO, paras. 5 & 28.

Nor does the Record contain any reference to the concurrent interference with petitioners' right to promote Proposition One voter initiative for nuclear disarmament and economic conversion and its local version, D.C. Election Board-approved D.C. Initiative 32, in violation of 42 USC 1985(4).


Petitioners alleged that, to further a conspiracy intended to "place administrative policy above the law," acting in concert with various identifiable superior and subordinate government agents, Respondent Robbins "entered false or grossly exaggerated information in the Federal Register, October 4, 1990, Vol. 55 No. 193 ps. 40879-40881 in violation of the APA, 42 USC 1983, 1985(3)(4), and 1986." S. CMPLT. Count Thirty-Three. 20/

20/ On February 6, 1992, after the dismissal of Huddle, respondents published a final rule-making, limiting possession of property in Lafayette Park to "three cubic feet" (Fed. Reg., Vol. 57, No. 25, ps. 4575-4576), despite the fact that,

"Many commenters and the petition (containing over 3,000 signatures) expressed the view that the rule was a burdensome and unnecessary restriction on freedom of thought and expression and that it was a regulatory attempt to negate constitutionally protected rights under the guise of protecting aesthetics." Id. p. 4574.

These petitioners filed a Complaint, pursuant to the Administrative Procedure Act, which was dismissed ------ also without any evidentiary hearing -- by the District Court (Thomas v. Lujan, 791 F. Supp. 321, Order denying reconsideration, (Dismissal Order available on WESTLAW), is presently pending respondents' Motion for Summary Affirmance, USDC Cir. App. No. 92-5204.


Allegedly this proposed rulemaking was "unnecessary, unreasonable," and intended to subject petitioners to deprivation of "their freedoms of religion, communication, and association." Id. The District Court ignored this allegation.

Respondents did not reference these allegations until their Motion for Summary Affirmance in the Circuit Court:

"With respect to the publication of RN 1024-AB93 ... (a)ppellees' counsel can locate no such publication, (and does) not know to what appellants are referring." Appellees' Motion, pg. 15, n. 15.

Petitioners explained to the Circuit Court that they were referring to the allegations summarized at S. CMPLT. Count Thirty-Three. For clarity, petitioners appended a copy of RN 1024-AB93 to their pleadings. Opposition to the Motion for Summary Affirmance at Exhibit 5.

While it may be puzzling to think that respondents' counsel could "locate no such publication," it seems incredible that the District Court granted respondents' motion to dismiss even though respondents offered no explanation on this crucial issue, which obviously implicated petitioners as respondents' objective,

"the 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." Federal Register Vol. 55 No. 193, October 4, 1990, pg. 40680 (RN 1024-AB93) (parentheses interposed from Picciotto).



Similarly, the District Court remained entirely mute on appellant's claims involving the enforcement of 36 C.F.R. 2.12. S. CMPLT. Count 17, paras. 13, 15, l8, l9, 20, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87. Supra, p. 37, 39-41.

A perplexing, very disturbing, aspect of the courts' disposition of the 36 CFR 2.12 issue is that it appears to fly in the face of law and reason as articulated in Doe,

"(Doe) challenge(d) the constitutionality of (36 C.F.R. 2.12) on the ground that it impermissibly restricts ... First Amendment rights to engage in expressive conduct in a public forum." U.S. v. Doe, 968 F.2d at 87.

The Circuit Court concluded:

"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, 490 U.S. 781, 790 (1989); Texas v. Johnson, 491 U.S. 397 (1989). We are additionally spared the need for any extended 'forum analysis' in this case, as no one disputes that Lafayette Park is a 'quintessential public forum,' see White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly, 'the government's ability to permissibly restrict expressive conduct [there] is very limited.' United States v. Grace, 461 U.S. 171, 177; see Hague v. CIO, 307 U.S. 496, 515-16." Id., 88; supra pg 26.

Given that Doe specifically addressed 36 C.F.R. 2.12, and specifically concerned an incident also specifically at issue in this Complaint (S. CMPLT. para. 19), it is indeed difficult to imagine what circumstances might justify failing to apply the principles stated in Doe to the facts of the instant case.

Again, respondents made no reference to the matter until their pleadings in the Circuit Court, where they simply claimed to be "unaware of any allegations relating to this regulation." Motion for Summary Affirmance, pg. 15, n. 15.


It was an error to dismiss without some explanation.


During the course of respondents' ongoing conflict, petitioners have been arrested under color of the D.C. disorderly conduct statute. Some of these instances were specifically at issue in petitioners' pleadings. E.g., S. CMPLT. Count 17, see also, App. ps. 205(b)-208, paras. 28-59.

The District Court made no comment on petitioners' claims involving the District of Columbia disorderly conduct statute.

Again, not until the appellate level did respondents make any reference to this claim, asserting they were unaware that allegations of abuse under D.C. Code 22-1121(3) were aimed at them. Motion for Summary Affirmance p. 15, n. 15.

That respondents and the courts should be required to address this discrete issue is evidenced by the fact that it was the federal officials, not District of Columbia officials, who were responsible for abuse of process, petitioners' baseless arrests and the suppression of petitioners' protected exercise under color of D.C. Code Title 22 Section 1121(3). App. ps. 241 & 242, Information and Dismissal Order, United States v. Thomas, USDC Cr. No. 91-232, see also, supra, p. 25-27.


In its opinion the District Court held that petitioners failed to state a claim under Title 42 USC Section 1983 because, "Section 1983 provides no relief against persons


acting under color of federal law." Huddle Memo, pg. 15.

However, that opinion also fails to consider the different occasions respondents disrupted petitioners' constitutionally protected activities under color of the D.C. disorderly conduct statute. Hobson v. Wilson, 737 F.2d 1, , 737 F.2d 17, n. 49. 21/

"(A) police officer forcibly took a poster from a young woman peacefully standing on a public sidewalk and destroyed it. Although not every encounter between a citizen and a policeman warrants extended judicial scrutiny and review, the implications of this apparently inconsequential incident raise important questions about the constitutional guaranty of freedom of expression, and require us to determine the circumstances in which police officers may be required to respond in damages in an action brought (under) 42 USC Sections 1983 and 1985(3)..." Glasson v. Louisville, 518 F.2d at 901, cert denied, 423 U.S. 930.

Perhaps the District Court, relying on Thomas I at 67, now holds that conspiracies to subvert constitutional provisions are permissible provided they occur "'under color of' federal regulations." Petitioners hope this opinion is incorrect. In any case, the court apparently overlooked the fact that this action was also brought under the principles articulated in Bivens v. Six Unknown Named Agents, 403 U.S. 388:

"An agent acting - albeit unconstitutionally - in the name of the United States possess a far greater capacity for harm than an individual trespasser.... (cites omitted) '(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S. at 684." Id. 392.

21/ For the Court's convenience, n. 49 tells us that, "(f)ollowing the Supreme Court's decision in (District of Columbia v. Carter, (409 U.S. 418), Congress amended (42 USC Section 1983) to include the District of Columbia. See, Pub.L. No. 96-170, Section 1, 93 Stat. 1284 (1979)." Hobson, 17.



Another of petitioners' key allegations, unmentioned in the disposition of this case, is that respondents have

"organized and participated in a complex and far-reaching plan -- which included false testimony in federal courts and fabricated documentation in federal publications -- to falsely portray plaintiffs' exercise of constitutional rights as criminal behavior, under color of the regulations, in violation of the constitutional safeguards provided for in the Administrative Procedure Act, 5 USC 552 et. seq., and plaintiffs' Fifth Amendment rights." Record, e.g., S. COMPLT, Count 26, see also Counts 27, 33, and Docket # 1, para. 20.

Petitioners clarified this point in oral argument.

"In this case, we are alleging that two of the specific regulations were pushed through the regulatory process with the assistance of false testimony and evidence on the part of some of these defendants." App. p. 266, Transcript, December 5, 1988, p. 24.

While the lower courts have apparently overlooked some of the Government's "incredible" testimony (App. p. 161, J. Bryant), there is ample evidence to support a claim that respondents and their agents have not told the truth, and nothing but the truth, when they went to court. E.g.:

"The testimony offered by way of explaining the police conduct is absolutely unworthy of belief" (Id. p. 12), App. pg. 160.

and "(the Deputy Chief of the Park Police and Director of the Secret Service, Executive Protection Branch) testimony that a large sign had been used by an individual to scale the White House fence fell apart at the trial. There was no evidence that any sign belonging to the plaintiffs or anybody else had ever been used to scale the fence." Id. p. 22 (added). App. pg. 170.

Nor did dubious testimony by Government agents end with White House Vigil.

"Officer Haynes, the Government's ... primary witness ... (who) spoke


with precision and exactitude and painstaking care, had selective memory ... (was) unable to remember even testimony that he had clearly specifically given in court hours earlier, failed to remember making, on some occasions, earlier arrests of the (petitioners, and) contradicted representations of the manner in which he inventoried the property...." United States v. Thomas, Thomas, Thomas, supra; App. ps. 145, 146 (parentheses added), compare, CoC, paras. 90-109.

It was further alleged that respondents made "false statements to the press for the purpose of maligning" petitioners, and justifying their unnecessary regulations. E.g. Record Docket # 1, para. 86. Well-documented (e.g., Record, Docket # 45, e.g., Exhibits 64-A thru D), and briefed (e.g., CoC paras. 64, 79, 80, 110).

Nothing in either the courts' or respondents' papers refutes these allegations.


From the onset of this litigation petitioners contended that several incidents of intentional delay in presenting Petitioners to a magistrate after arrest, thus resulting in several days of incarceration, violated petitioners' rights under the Fifth Amendment. Complaint (Docket # 1), para. 54, Amended Complaint (Docket # 11), para. 50, Clarification of Complaint (Docket # 45) paras. 90, 92, 108.

Instead of explaining why respondents have not targeted petitioners with a pattern and practice of surveillance, threats, seizures, arrests, unnecessary force, and violence, directly resulting in deprivation of petitioners' Fifth Amendment right to remain in a public park unmolested by police abuse, the court reasoned,

"Plaintiffs may have documented ... instances of seeming misconduct." Huddle Memo, p. 13.
"(Therefore) plaintiffs are surely free to challenge their arrests in the proceedings in which they are defendants." Id. p. 21, ftn. 17 (parentheses added).


There are two problems with this reasoning. First, as mentioned above, petitioners do not enjoy litigation. Second, as a general rule we have seen respondents drop their baseless criminal charges (supra, e.g., ps. 15 and 24-26; App. ps. 179, 180, 240-242); thus their authoritarian abuses usually evade any judicial review.


In Buckley v. Veleo, 424 U.S. 1, the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of petitioners' expressive "continuous presence" depends on the "quantity" of petitioners' "continuity" in the "public forum."

"(U)se of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515-516.

Although the right to remain in a public park without being harassed, intimidated, arrested and assaulted by law enforcement personnel may not specifically be enumerated in the Constitution, for the sake of civilized society, it must be recognized as a right inherently "retained" by the people.


The District Court erroneously held, "plaintiffs have ... failed to demonstrate federal defendants' discriminatory animus" (Huddle Memo pg. 11), yet correctly observed that petitioners,

"(c)ompelled by their religious and political convictions ... have sought to urge the general public ... and the President himself ... to strive towards ... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Id. ps. 3 & 4.


There is little question that "Section 1985(3) extended to purely political animus to reach conspiracies formed because a person 'was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist or because he was a Vermonter (quoting Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson, supra, at 16, n. 44.

"(S)everal circuits have ruled that politics and religion define such [class-based discriminatory animus that section 1985(3) requires]. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88 (discrimination on basis of political affiliation constitutes class-based discriminatory animus); Ward v. Connor, 657 F.2d 45, 47-48 (discrimination against members of Unification Church), cert denied, 455 U.S. 907; Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 20 (discrimination based on political affiliation with racial overtones) modified on other grounds, 446 U.S. 754; Means v. Wilson, 522 F.2d 833, 839-40 (discrimination against supporters of insurgent candidate for tribal council presidency), cert denied, 424 U.S. 958; Glasson v. City of Louisville, 518 F.2d 899, 911-12 (discrimination against critics of the President), cert denied, 423 U.S. 930; Marlowe v. Fisher Body, 489 F.2d 1057, 1064-65 (discrimination against Jews); Action v. Gannon, 450 F.2d 1227, 1232 en banc (worshippers at predominantly White parish disrupted by Black civil rights workers); see also comment, Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977) ('[T]he legislative history behind section 1985(3) unmistakably LEADS to the conclusion that discrimination [on the basis of political affiliations or beliefs] was intended to be actionable.')." Hobson at 21 (parentheses in original).

It is undisputed that, as President and commander-in-chief of the police/armed forces respondent Bush, following the lead of his predecessor Ronald Reagan (Huddle Memo, p. 2, ftn. 1), promoted the concept of "Peace through Strength," in diametric opposition to the concept of "Peace through Reason" promoted by petitioners. S. CMPLT para. 71. This plain fact would make it easy for a jury to infer that respondents were animated by a desire to suppress public opposition to the Chief's policy of "Peace through Strength."


The District Court correctly apprehended petitioners' purpose for being in Lafayette Park. Ipso facto, respondents acted to disrupt petitioners'

"religious and political convictions ... to strive towards ... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Huddle Memo, ps. 3 & 4.

That respondents posed a disingenuous challenge to petitioners' factual representations on this point merely indicates another disputed issue.


Predicated on the validity of factual representations proffered in two of respondents' motions in the District Court, petitioners were compelled to file two motions for sanctions.

Despite the fact that the veracity of both issues challenged by petitioners' motions for sanctions were cited by the District Court as reasons for terminating the case, and without holding any hearing, the court summarily denied both motions on the grounds, that "plaintiffs have failed to show cause for imposing sanctions against defendants." Huddle, Memo, pg. 24, ftn. 20.

On November 14, 1991 the respondents filed a Motion for Summary Affirmance, contending that "(t)he district court had no obligation to conduct a hearing into petitioners' motions for sanctions." Id. pg. 8.

The Circuit granted respondents' motion without discussion.


1) The First Motion for Sanctions

The first motion for sanctions (Docket # 51, February 8, 1989) was prompted when respondents' counsel in the District Court, AUSA Michael Martinez, represented that, "(p)laintiffs' religion is in any case newly found.... (R)eligious belief was never asserted as a basis for their actions until early 1987." Record, Docket # 48, Federal Defendants' Reply to Plaintiffs' Opposition to the Motion to Dismiss and to All of Plaintiffs' Other Submissions, January 27, 1989, page 5, ftn. 3.

"(S)anctions may be imposed, if a reasonable inquiry discloses the ... motion ... is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument ... or (3) interposed for any improper purpose...." Westmoreland v. CBS, 770 F.2d 1168, 1174.

Owing to his participation in previous litigation, Mr. Martinez certainly should have known his assertion concerning "religious belief" was not well grounded in fact. As seen above, "animus" is a crucial aspect of this case, so the issue of petitioners' religious beliefs took on added significance.

The claim seemed so egregious that petitioners' initial motion for sanctions merely referenced quotes from the previous litigation, detailing religious claims dating back to 1981.

Next, Mr. Martinez opposed (Record, Docket # 51) petitioners' motion for sanctions by reiterating the misrepresentation that "religious beliefs were not asserted as a basis for plaintiffs' actions until early 1987." Federal Defendants' Opposition to Plaintiffs' Motion for Sanctions or Other Disciplinary Action, February 17, 1989, pg. 2. So adament was Mr. Martinez that he even threatened to file for sanctions against petitioners. Id. pg. 4, ftn. 4.


On March 2, 1989 (Record, Docket # 55) petitioners responded to respondents' opposition in greater detail, including documents from the previous litigation showing Mr. Martinez's earlier knowledge, and undisputed declarations by five of the plaintiffs.

Respondents had no further comment.

2) The Second Motion for Sanctions

Petitioners' second motion for sanctions (Record, Docket # 103, April 15, 1991), challenged -- among other issues -- 22/ the veracity of certain factual assertions with respect to the increase of police activity in the area of Lafayette Park, and the manner of enforcing the regulations, which were contained in the Declaration of Major Carl Holmsburg in Support of Federal Defendants' Opposition to Plaintiffs' Motion to Renew their Motions for TRO. Record, Docket # 101, April 8, 1991.

In dismissing this action the District Court determined "there was a substantial increase in activities ... in Lafayette Park ... and a corresponding increase in Park Police presence and enforcement of the ... regulations." Huddle Memo, pg 18. As it happens, this claim was precisely put at issue in petitioners' Second Motion for Sanctions.

In moving for summary affirmance of the District Court's denial of sanctions, respondents cited, very generally, MacArthur Area Citizens Association v. Republic of Peru, 823 F. 2d 606, and Westmoreland, supra. Under the present circumstances neither of these cases seems to support respondents' contentions:

22/ For one thing, respondents' three (3) page motion, "responding" to the detailed allegations of petitioners' March 21, 1991 pleadings, was attached to one and threee quarters inches of unreferenced, unexplained, and often totally unrelated papers.


"The signature of an attorney constitutes a certificate by him that the pleading, motion, or other paper ... is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiation, shall impose upon the person who signed it ... an appropriate sanction...." Westmoreland, at 1173, emphasis in original.

Having read MacArthur, a case in which, after conducting hearings, the court determined that the "attorneys acted in good faith," petitioners are still clueless as to how that case might bolster respondents' position.

Respondents purported, "Nothing in the rule or case law mandates that a district court conduct a hearing into a motion for sanctions." Appellees' Motion at 8.

However, the clearly stated purpose of the rule, coupled with the most rudimentary common sense, dictates that a hearing is the only method of trying fact.

While it is true that courts have "wide discretion" in the matter of sanctions, it is also clear that the court's discretion is not boundless, and that case law strongly indicates a hearing is expected when factual, as opposed to legal, issues are raised.

"Under amended Federal Rule of Civil Procedure 11 ... the new provision that the court 'shall impose' sanctions mandates the imposition of sanctions when warranted by groundless or abusive practices. The rule's provision that the court 'shall impose' sanctions for motions abuses thus concentrated the district court's discretion on the SELECTION of an appropriate sanction rather than on the DECISION to impose sanctions." Westmoreland at 1174, EMPHASIS in original, see also, AM Int'l Inc. v. Eastman Kodak, 39 Fed.R.Serv.2d (Callaghn) 433, Eastway Construction Corp v. City of New York, 762 F.2d 243, 254 n. 7.

The District Court was bound to take "(t)he factual allegations of the complaint (as) true and liberally construed in favor of (petitioner)." Huddle Memo, p. 7. The


facts impugned here go to the allegations of the complaint.

"Resort to frivolous ... maintenance of baseless defenses and harassment of one's opponent are practices that ... tend to impose unjustified burdens on other parties, frustrate those who seek to vindicate their rights in courts, obstruct the judicial process, and bring the civil justice system into disrepute." Sanctions Under the New Federal Rule 11, A Closer Look, 104 F.R.D 182 (1985).

Petitioners supplied documents in support of their challenge to the veracity of Major Holmsberg's factual allegations. Respondents supplied nothing but argument to support their baseless defense.

In dismissing the complaint, largely on the strength of crediting the very assertions challenged in petitioners' motions for sanctions, without even conducting "a reasonable inquiry" to test the validity of those assertions, it seems the Court was in error. Even "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821. And this access must be "adequate, effective, and meaningful." Id. at 822.

Particularly where the Motions for Sanctions challenged claims so integral to the complaint itself, it was an error for the District Court not to have held a hearing to determine which side was telling the truth, and the Circuit Court erred in summarily affirming the District Court's denial of petitioners' Motions for Sanctions.


The rule of law is at stake.

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, supra, 163.


Petitioners have sincerely held religious beliefs.

"There is only one reason I bother to speak to other people, that is to provoke them into thinking about the existence of God. Because if they continue to believe there is no justice beyond what we can see in one lifetime, then the rule of the world will continue to be Might is Right -- and it's not. Let us reason together." App. p. 216.

Petitioners have been operating on the heart of democracy -- freedom of thought -- manifest in the free exercise and expression of religious convictions.

"Freedom of conscience and freedom to adhere to such religious ... form of worship as the individual may choose cannot be restricted by law ... thus the First Amendment embraces two concepts -- freedom to believe and freedom to act." Cantwell v. Connecticut, 310 U.S. 303.

Assuming petitioners' claims are true, we are confronted by a monstrously complex case of deception, implemented by unjustified force, violence, abuse of judicial process and seizure of property under color of legitimate authority.

"The settled principle (of conspiracy) derives from the reason of things in dealing with socially reprehensible conduct; collective criminal agreement --partnership in crime -- presents a greater potential threat to the public then individual derelicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offence which is the immediate aim of the enterprise." Iannelli v. United States, 420 U.S. 770 (added).

In Spence v. Washington, the Supreme Court was,

"'confronted with a case of prosecution for the expression of an idea through activity ... (a)ccordingly, (the Court) must examine with particular care the interests advanced by (the government) to support its


prosecution.' Id. 418 U.S. at 411." Texas v. Johnson, 109 S. Ct. 2541, 2542.

The lower courts have failed to conduct such a careful examination. Rather than deal with the delicate matter of the wild claims advanced by Defendants' Exhibit 4 (supra p. 10, 23, 38), the Court merely suggests that "evidence of plaintiffs' various convictions is available in published opinions of this Court." Huddle Memo p. 4 n. 4.

"(T)he fact that this rule establishes a criminal offense entailing possible imprisonment for the violator is even more reason for this court to be wary...." Felton v. United States, 96 U.S. 703; see also, Monell v. New York, 430 U.S. 690, 691.

The courts stopped short of examining the "evidence" of petitioners' convictions, but petitioners feel that "evidence" is instructive. Other courts have viewed the "on-going conflict" with greater restraint, and less prejudice, e.g.:

"THE COURT: Let me ask you this ... hasn't it been one of those things where he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."
"THE GOVERNMENT: He plays games.
"THE COURT: Well, I don't know who is playing a game really." App. ps. 282-284, United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983.

Throughout, petitioners have done little more than think, express thought, and, occasionally, fall asleep, which is no real "problem."

"The Government stated that it had 'no interest' in prohibiting any of these defendants from sleeping in the park and that its only interest ... was in 'enforcing the regulations' at issue.
"When it has been shown that an individual has acted contrary to law out of a 'sincerely held religious belief,' it is the Government's responsibility to show that it has a compelling interest in the law at issue and that it has enforced that law with the least restrictive means with respect to that religious belief. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Murdock v. Pennsylvania, 319 U.S. 105 (1949); see also, Thomas v. Review Board, 450 U.S. 707 (1981); L. Tribe American Constitutional Law, Sec. 14-10. The Government did not offer a scintilla of evidence to that effect. Nor did it proffer a single reason sufficient in law to support a claim of compelling interest." App. ps. 300-301, United States v. Thomas and Thomas, Cr. No. 87-62, J. Richey, filed April 23, 1987, reversed, 864 F.2d 188.


Petitioners have been harmless.

"The defendant and others who are maintaining vigils in Lafayette Park may be eccentric, but they have stood up day and night for their beliefs in spite of repeated arrests and convictions and the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of a city at night. Their protests have been peaceful. They are not venal criminals, and application of criminal sanctions to them puts strain on the criminal justice system. That system is designed to protect the public from crime, to condemn and punish criminals, and to deter others from committing crime. The justification for condemning and punishing a peaceful protester like defendant is not immediately apparent. The effectiveness of the criminal sanction as a protection of the public or as a deterrent to repetition when applied to persons like defendant is also questionable." United States v. Harmony, 702 F. Supp. 295, 299.

Petitioners may be eccentric, but they've tried to be reasonable.

"This Court in its wisdom may decide to work out an amicable solution which would enable me to legally continue my round-the-clock vigil while staying out of jail (that would save) the taxpayers a considerable sum of money in police, court and prison funds." Record, Exhibit 37, United States v. Picciotto and Thomas, USDC Cr. No. 83-0056, J. Bryant, July 7, 1983, transcript, App. p. 293.

Unreached are several most significant constitutional issues.

"The Court's ruling today does not mean that the Government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed....
"To continue with this trial would transform the trial from a prosecution into a persecution, and, accordingly the respective motions for judgment of acquittal are ... granted." App. p. 146, Docket # 45, Exhibit 105, ps. 1026, Transcript, United States v. Thomas, Thomas, Thomas, et. al., supra.


Due to petitioners' religious obligation to be in the park, the Government has given conscientious courts a moral dilemma problem:

"COURT: If I follow the government and find him guilty, what am I supposed to do with him? He doesn't have any money. If I put him on probation, he's going to be right out there doing the same thing. The criminal penalty isn't enough to deter him, point 1. Point 2, I have a hard time sleeping putting him in jail, actually, for -- what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world."
"You don't want to put him in jail, huh?" App. p. 309, United States v. Picciotto and Thomas, USDC Cr. No. 82-358, J. Bryant, July 5, 1992, Record, Docket # 45, Exhibit 36.
"THE GOVERNMENT: We are going to ask for that.
"THE COURT: For how long? What is the maximum period of time?
"THE GOVERNMENT: Six months. If your honor would like to send them to Sacramento to demonstrate in front of the state capitol out there we wouldn't have any strong objection." Id, App. pg. 312.

Finally, these arrests have left the Circuit Court with a "puzzle." A puzzle which the court recognized might be "a tragedy." United States v. Thomas & Thomas, 864 F.2d, 199.
Truth ("actual reality," id., at 192) would demand determining whether respondents merely created a judicial illusion making it appear that petitioners "repeatedly ran afoul of the regulations."

"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury, at 161.


The real tragedy would be that respondents have done precisely as petitioners claim, while the judicial system was uncivil enough to ignore the factual dispute of whether respondents planned the scheme to halt the exercise of petitioners' rights.

"To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure." 22 Col.L.R. 72, see also, Morisette v. United States, 342 U.S. 246, 255.


Upon the foregoing discussion, petitioners suggest, this Court would best serve civil justice by issuing a writ requiring the Circuit Court for the District of Columbia to produce a certified copy of US App. (D.C.) 91-5304 so this Court may inspect the proceedings and determine whether the irregularities set forth in the foregoing discussion, require that the instant Complaint be remanded for discovery and trial.

In respectful service to the God of Life and Love,

_________(signed)_____________ Concepcion Picciotto, petitioner pro se P.O. Box 4931 Washington, D.C. 20009 202-265-5389
_________(signed)_____________            _________(signed)_____________
William Thomas, petitioner pro se         Ellen Thomas, petitioner pro se
2817 11th Street                          N.W. 2817 11th Street N.W.
Washington, D.C. 20001                    Washington, D.C. 20001
202-462-0757                              202-462-0757


I, William Thomas, hereby certify that, on November 20, 1992, I served copies of petition for Certiorari to Kenneth W. Starr, Solicitor General, U.S. Department of Justice, Washington, D.C. 20530, and Ron Garvin, United States Court of Appeals for the District of Columbia Circuit, 3rd and Constitution Avenue, NW, Washington, D.C. 20001 by placing them, postage prepaid, in First Class U.S. Mail.

William Thomas, Petitioner pro se

Petition for Certiorari - Appendix