"(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).
"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.
16/ In pertinent part 36 CFR 7.96(g)(2)(i) provides
"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.
"(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.
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.
"[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).
"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.
"(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.
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.
"As is apparent from the videotape ... plaintiffs are shown resisting arrest. [And] ... were not complying with the regulation that prohibits camping." Huddle Memo, 18.
petitioners was even charged with "camping."
"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.
"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).
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.
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.
"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.
"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).
"(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.
"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.
acting under color of federal law." Huddle Memo, pg. 15.
"(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.
"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.
"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.
"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.
"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.
"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.
"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).
"(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.
"(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.
"(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).
"religious and political convictions ... to strive towards ... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Huddle Memo, ps. 3 & 4.
"(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.
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.
"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.
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).
"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.
"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.
"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.
"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).
"'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.
"(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 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.
"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.
"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.
"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.
"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.
"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.
"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.
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
William Thomas, Petitioner pro se