Apparently relying on the "without prejudice"  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
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. 
"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....
"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. 
Rather than scrutinize the opposing positions concerning the "ongoing conflict"
or the factual (in)accuracy of respondents' representations, Judge Green decided,
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
"It is undisputed that plaintiffs have been repeatedly warned, cited,
arrested, tried, and sometimes convicted for violating these regulations."
Huddle, Memo pg. 4.
"with the puzzle of why the Thomases sought to discern the scope of the
regulation yet repeatedly ran afoul of it....  (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'
[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
1. THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS
FAILED TO STATE A CLAIM UNDER 42 U.S.C. 1985(3) AND 1986
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) THE DISTRICT COURT TWICE GRANTED RELIEF ON THE BASIS OF FACTS WHICH REMAIN UNDISPUTED
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'
Petitioners pressed for an evidentiary hearing, but the District Court left
important questions unresolved:
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
"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.
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. 
b) THE HEIGHTENED PLEADING STANDARD WAS MET.
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.
Petitioners assert that, for example, Thomas' three groundless arrests for
"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.
[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.
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.
"There remains an incredible number of incidents  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.
"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
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
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.
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