Petition for Certiorari


The Circuit Court may only grant summary affirmance when "the positions of the parties are so clear as to justify summary action." See Taxpayers Watchdog v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.), cert denied, 449 U.S. 994 (1980).

The gravamen of the complaint is respondents' suppression of petitioners' free exercise of thought and expression. Record, Supplemental Complaint, March 21, 1991 (Docket # 96 [hereinafter "S. CMPLT"]), Count Thirty.
"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

This is a serious matter. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See New York


Times v. United States, 427 U.S. 763; Elrod v. Burns, 427 U.S. 347, 373.


As indicated by the discussion which follows, respondents' position is not so clear as to merit summary action.

It is clear, as the District Court noted, that "plaintiffs and law enforcement officials have engaged in an (eleven year) ongoing conflict [1] arising from plaintiffs' exercise of their First Amendment rights." Huddle Memo, pg. 3 (parentheses added).

Unfortunately, the irreparable injury alleged in this case goes beyond loss of First Amendment freedoms. It is undisputed that, time and again over the course of the ongoing conflict, petitioners have repeatedly suffered arrest, assault, intimidation, imprisonment, had signs, literature, and other expressive articles seized and/or destroyed, and had their expressive activities disrupted and suppressed.
"The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Ramirez de Arellano v. Weinbergher, 745 F.2d 1500, 1506 (D.C. Cir. 1984) C. Wright & A. Miller, Federal Practice and Procedure, Section 1357, p. 304 (1990)." Huddle Memo, pg. 7.

A primary problem with the resolution of this case is that the lower courts took respondents' credibility uncritically and with undue prejudice. On a motion to dismiss, respondents are not entitled to untested credibility. Infra, SANCTIONS, ps. 54-55.

First, instead of submitting the factual accuracy of petitioners' well-documented allegations to judicial inquiry, the District Court mistakenly 1) ignored key material

[1 The District Court's brief reference to the Statute of Limitations (Huddle Memo, p.22) apparently omits the fact that the alleged conspiracy is "ongoing."]


circumstances surrounding petitioners' claims, and 2) awarded extremely favorable inferences to respondents, against both the evidence and sound advice, crucial to any free society:

"(C)ourts must be especially careful in scrutinizing (time, place, and manner) restrictions on first amendment expression that the government seeks to justify on eye-pleasing grounds.... Because of their subjective nature, aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just ... that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers. Distaste for the vigor with which a message is asserted can too easily be cast as an aesthetic interest in compelling others to be more moderate and decorous - and, in consequence, less effective - in conveying their message." White House Vigil for the ERA v. Clark, 746 F.2d 1518, 1551; City Council v. Taxpayers for Vincent, 103 S. Ct. 2118, majority opinion, 2139, 2141, see also, Clark v. CCNV, 468 U.S. 288 ("Clark"), dissenting Opinion at 315.

Second, the District Court seems to have confused stare decisis with res judicata [2] and, subsequently, relied on a legal theory -- posited on a interpretation of Clark; White House Vigil; United States v. Musser, 873 F.2d 1513; Thomas I and Thomas II. The first Thomas case (USDDC CA No. 84-3552 (identified in Huddle Memo, p. 4 as "Thomas II," as distinguished from "Thomas I," the later Thomas v. News World Communications, 681 F. Supp. 55) was filed in October, 1984. The Court's theory mistakenly presupposes respondents' good faith, and also erroneously requires that the

[2 As has been frequently pointed out, stare decisis must not be confused with res judicata, since the two concepts rest on different principles. Heisler v. Thomas, 24 ALR 1215, aff'd 260 U.S. 245. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Neff v. George, 354 Ill. 306; 4 NE 195(a).]


factual allegations petitioners now raise must yield to the unexamined assertions of respondents' demonstrably inaccurate pleadings.

Petitioners documented numerous abuses involving respondents' joint enforcement of these and other regulations.
"(C)onstitutional rights of free speech and the right to peaceful demonstration are involved.... (M)aterial facts are in dispute involving whether supervisory officials and officers acted in bad faith, either in a conspiracy or by combined action, to deprive plaintiff of his First Amendment rights." Memorandum, Magistrate Burnett, January 13, 1987 ("Mag. Memo,") pg. 6. Record, Plaintiffs' January 17, 1988 filings ("Docket # 45"), Appendix thereto ("Exhibit"), 3; cf. Thomas v. United States, 696 F. Supp. 702, 706 ("Thomas II"). App. p. 41.

Over the eight years of litigation the conflict continued, while petitioners consistently, but fruitlessly, sought a hearing of fact. [3] Except for the Magistrate's inquiries, respondents' allegedly wrongful acts have completely escaped judicial review.
"There exist sufficient troublesome incidents raising genuine issues of material facts in dispute in this case, which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Magistrate's Memo, p. 14, App. p. 49.

[3 On February 5, 1987, Thomas II, consistent with the recommendations of Magistrate Burnett, that case was headed for trial. See, USDC CA. No. 84-3552, Order, February 19, 1987. App. p. 54. The status conference set for April 2, 1987 was held on April 9th. App. p. 55. The conference set for May 1, 1987 (id.) was postponed, without comment, and never happened. The decisions in Thomas I, 681 F. Supp.55, and Thomas II, 696 F. Supp. 702, represent a complete and abrupt reversal of all previous decisions in that case (e.g., App. ps. 56-60, 61-67), and the dismissal "without prejudice" left petitioners' "detailed" (id.), well-documented claims undisputed.

This unexplained reversal permits almost limitless speculation. One might reasonably speculate that the District Court was intimidated by a pro se complaint alleging that the President of the United States conspired (either, in the terms of the statute, "directly or indirectly") with a plethora of administrative agents to "place administrative policy above the law" (S. CMPLT, COUNT 33), with the intent to eliminate "one of the chief distinctions that sets us apart from totalitarian regimes." Daunting as this prospect may seem, it should not preclude judicial review. ]


"Magistrate Burnett personally presided over the depositions of ten government officials." Huddle Memo, pg. 5. The District Court saw "no reason to reject the findings of that Magistrate" (id. 22), yet, inexplicably, disregarded the essence of the Magistrate's informed conclusions:
"Despite repeated attempts by plaintiffs to instigate a proper judicial hearing into the particulars of this dispute the underlying facts remain unexamined. Yet the dispute continues to be played out in an allegedly uncivilized manner, on the streets, under cover of darkness.

"(T)his one-sided contest has only been 'argued' in the press (see, e.g., Clarification of Complaint, filed January 17, 1989, paras. 80, 100, 110), a situation which does not enhance accurate understanding.

"'Connie's rendition ... is a pack of lies at the most,' said (Park) Police Lt. Hugh Irwin. 'And it's because her world is so small sitting on the sidewalk, associating with the people she does.' See, Exhibit A. hereto [App. p. 68 hereto] Associated Press wire story [quoting Respondent Irwin's comments about Petitioner Picciotto].

"On the Record the only real question appears to be, who is telling the truth? For various reasons (see, e.g., Plaintiffs' Opposition to Federal Defendants' Application for Protective Order and to Renew the Motion for Sanctions, filed November 20, 1989) questions of veracity have never been reached." Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 21, 1989, Docket #74 [brackets added]; see also, Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 23, 1988, Docket #14.

Apparently relying on the "without prejudice" [4] dismissal of Thomas II (696 F.

[4 "'A dismissal of a suit "without prejudice" is no decision of a controversy on its merits and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.' This statement of the law is found in Matthews v. Glenn, 41 S.E. 735, and is sustained, if it needs any authority in support of it, in Ragsdale v. R.R. Co., 82 Miss at 847 and Mobile County v. Kimball, 102 U.S. 691." Newburry v. Ruffin, 45 S.E.2d 733, 734; see also, Seamster v. Blackstock, 2 S.E. 38, citing 7 Wall 107. See, publication Words and Phrases for other constructions and definitions of "without prejudice."]


Supp. at 712), the District Court neglected to address even one of the many factual claims alleged between 1981 and 1988. E.g., Complaint (Docket # 1), filed October 31, 1988. E.g., Complaint (Docket # 1), filed October 31, 1988, paras. 21-69.

Similarly, allegations occurring between 1988 and 1990 (e.g., Applications for Temporary Restraining Orders (Docket # 58), filed September, 11, 1989, and June 18, 1990 (Docket # 90)), after Magistrate Burnett's inquiry, were also dismissed without an iota of comment from the District Court.

The District Court limited its terse comments to incidents which occurred in 1991. Those comments are discussed below.

Respondents' strongest argument, predicated on Defendant's Exhibit 4, was prejudicial, as well as factually flawed. [5]
"Plaintiff William Thomas is a perennial demonstrator in the White House/Lafayette Park area who has, since June 1981, sought to maintain a continuous vigil at those areas. Over the ensuing years Mr. Thomas has been joined in his efforts by each of the other plaintiffs; first by Concepcion Picciotto, later by Ellen Thomas, and more recently by plaintiffs Huddle, Joseph, Harmony and Galindez....[6]

"The confluence of plaintiffs' continuous presence in the White House/Lafayette Park area with federal regulations at 36 CFR Sec. 7 has resulted in numerous arrests of the plaintiffs in the years since 1981. Indeed, William Thomas has been arrested at least twenty-five times in the 1981-88 period and convicted at least fourteen times. See, [Defendants'} Exhibit 4." Federal Defendants' Motion to Dismiss, ps. 4, 5, filed December 21, 1988.

[5 Almost ironically, the District Court granted petitioners' Motion to Strike "Exhibit 4." Huddle Memo, p. 4, ftn. 4. "Exhibit 4 is discussed in more detail infra. ps. 38, 57. ]

[6 Plaintiffs Huddle, Joseph, Harmony, Galindez, and Love have all succumbed to the unrelenting pressure of respondents' ongoing conflict, and have abandoned both their expressive activities in the Park, and further attempts to reason with the judicial system.]


Although some of Thomas' arrests (far fewer than fourteen, infra p. 38) have resulted in convictions, far more have resulted in dismissal of charges, or acquittal. More importantly, focusing on Thomas alone is a prejudicial mistake. Petitioner Picciotto, for example, has been arrested at least ten times (e.g. Amended Complaint [Docket # 11], November 23, 1988, paras. 13, 15, 17, 18, 19, 20, 23, 26, S. CMPLT., para. 24, and routinely threatened with arrest, (id. paras. 55-58), with only one conviction. [7]

Rather than scrutinize the opposing positions concerning the "ongoing conflict" or the factual (in)accuracy of respondents' representations, Judge Green decided,
"It is undisputed that plaintiffs have been repeatedly warned, cited, arrested, tried, and sometimes convicted for violating these regulations." Huddle, Memo pg. 4.

Because of the narrow limitation of evidence allowed in criminal cases, even those "sometimes convict(ions)" did not answer all the questions, thus, the Circuit Court is left
"with the puzzle of why the Thomases sought to discern the scope of the regulation yet repeatedly ran afoul of it.... [8] (T)he Thomases have always believed that they have not over the years engaged in camping ... and that they have in accord with their deeply held religious beliefs given up all living accommodations... It may be unfortunate that the Thomases' deeply felt convictions have led them to persistent behavior running afoul of the clear import of the regulation. That disagreement ... perhaps reflects courage, conscience, or tragedy." United States v. Thomas and Thomas, 864 F.2d 188, 199.

[7 When considered in the light most favorable to petitioners, one would have to infer that even those arrests which did result in convictions would not have occurred except as a result of respondents' premeditated acts and false testimony at petitioners' criminal trials.]

[8 To distinguish their "constitutionally protected vigil" from "criminal camping," the primary relief sought by petitioners was definitions of "camping" and "storage of property" (App. p. 34), a detail which only complicates the Circuit Court's "puzzle." ]


Of course, the real tragedy would be that, as petitioners contend, respondents successfully manipulated words, facts, and the federal court system to make it appear as if petitioners ran afoul of regulations which were actually intended, promulgated or enforced to undermine their free exercise of thought, expression, and assembly. Infra, ps. 55-60, IMPORTANCE OF THE CASE.

This grave possibility, central to petitioners' complaint, was not addressed by the lower courts.


The District Court held "that plaintiffs are not entitled to the relief they seek." Huddle Memo, ps. 2 & 3.
"'(A) complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Huddle, Memo, ps 6, 7, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957).


A court may, of course, grant preliminary relief, and later, after determining facts, decide that further relief is not merited. But that is not the case here.

Twice, on the basis of still undisputed facts, the District Court granted preliminary relief against incidents in which respondents' agents disrupted petitioners' communication.

Petitioners pressed for an evidentiary hearing, but the District Court left important questions unresolved:
"You may say very rightly that you're entitled to this and the Government


recognizes the wisdom of that, but the Government is saying, 'You don't have to put on a case. We agree with your position. We will give you the bottom line as to that'." J. Green, TRO hearing, September 12, 1989, p. 13. App. p. 81.

First, among other unexamined allegations, after an incident where Respondent Berkowitz disrupted a television interview of Petitioner Picciotto, on September 13, 1989 the Court ordered that "there will be no interference by any United States Park Police personnel or other defendants with communicative activities between plaintiffs and members of the news media and general public in Lafayette Park." App. ps. 85-86.

In the second incident, petitioners claimed that under the direction of superior officials, and without probable cause, a number of Park Police agents disrupted petitioner Picciotto's expressive activities by lodging criminal charges against her and seizing two flags which she was using in her demonstration.

Petitioners initiated legal action to retrieve the flags on June 18, 1990. Docket # 80. Respondents consistently opposed petitioners' efforts to have the flags returned. Docket #'s 81, 83, 88, 90.

Finally, on October 12, 1990, after it became unmistakably clear that respondents had no valid grounds for retaining the flags, the second Order granting relief was filed without any oral representations. App. ps. 87-88.

These two incidents present a microcosm of the pattern and practice of regulatory abuse which permeates the entire Complaint. At no point in the Record of this entire case did respondents challenge the facts as petitioners represented them.

Given that the District Court has twice granted relief on the basis of facts -- still undisputed -- which plainly entitled petitioners to relief, it is difficult to understand why


petitioners would not be entitled to permanent relief against future repetitions of similar incidents. City of Newport v. Facts Concerts, 453 U.S. 267, 279. [9]


The District Court held, "(p)laintiffs ... have failed to explain sufficiently how defendants have engaged in a common plan." Huddle Memo, pg. 11. In requiring that "plaintiffs must allege and PROVE five elements" (id., pg. 6, EMPHASIS added) the court elevated the pleading standard to unattainable heights.

Certainly proof would be necessary for petitioners to have prevailed at trial. However, at this point, where "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff" (Ramirez, supra), petitioners assert, the Court got ahead of itself.
"Petitioner argued that although she had no knowledge of an agreement between (respondent) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at 157.

Petitioners assert that, for example, Thomas' three groundless arrests for

[9 Regrettably, these incidents in which relief was granted were neither the beginning nor the end of respondents' efforts to disrupt petitioners' constitutionally protected exercise of free thought and expression.
For example, in Plaintiffs' Complaint in Support of Their Motion for a Temporary Restraining Order (Docket # 86), filed September 18, 1990, petitioners reference another incident -- also unaddressed by respondents or the court.
While the "courthouse is not an unfamiliar edifice" (Huddle Memo, p. 4), petitioners do not enjoy litigation. Moreover, because the District Court asked "that there be no further pleadings in this case" (Transcript, January 9, 1989, p. 41, App. p. 129), petitioners exercised some restraint, and their pleadings do not catalog all respondents' ongoing activities.]


drumming and "disorderly conduct" (infra, pg. 26) would, by themselves, be sufficient to state a claim under 42 USC Sections 1983, 1985(3)(4) and 1986.

Erroneously the District Court opined, "(e)ach plaintiff points to a single instance -- his or her own arrest -- as illustrative of the alleged unlawful pattern...." Huddle Memo, pg. 20.

Obviously, a single arrest does not a pattern or practice make. But it is equally obvious that petitioners are not talking about a single arrest. For another of the many possible examples contained in petitioners' pleadings, the several indisputably baseless arrests of Petitioner Picciotto (Docket # 11, paras. 17, 18, 19, 20), which officer Haynes couldn't remember making (infra p. 47-48, App. ps. 145-146), far exceeds a single arrest.

Once again, Magistrate Burnett's opinion, enlightened by hearing limited testimony, is best informed.
"There remains an incredible number of incidents [10] stemming from (petitioners') arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Thomas II, Mag's Memo, pg. 9, App. p. 44.

The specific question of whether the elimination of petitioners' signs and expressive presence from Lafayette Park was the object of a conspiracy planned and executed by respondents, has entirely escaped judicial review.
"Initially, we note that this Circuit has previously permitted actions to be brought under section 1985(3) against federal officers. See, Fitzgerald v. Seamans, 553 F.2d 220 (1971) (White House official may be liable in section 1985(3) action). As a result, we pause here only to resolve any lingering doubts about the rationale of the law of this Circuit.... Because

[10 In their pleadings below petitioners detailed many incidents not mentioned in the instant pleading.]


the law in this area for years was based on conclusory, unsupported statement and misguided interpretations of an unfortunately cryptic opinion, we want to make absolutely clear the basis of our decision." Hobson v. Wilson, 737 F.2d 1, 19.

As shown below, the record of this case surely contains "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324.

Petition for Certiorari - Continued

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