It is certainly conceivable that when Respondent Robbins met with Mr. Watt in
March, 1983 (infra, A MEETING OF MINDS TO ILLUSTRATE THE "ONGOING
CONFLICT, p. 28). Mr. Robbins informed Mr. Watt that it would be unconstitutional
to prohibit demonstrations outright (see, App. ps. 162, 163), therefore Robbins and Watt
agreed to subvert the Constitution, "on an incremental basis" (Thomas II, at 705),
through regulatory subterfuge.
Whether the connection, in respondents' minds, between Clark v. CCNV and
White House Vigil v. Clark was malicious, is a very important, unanswered question.
Thus, the CCNV/Clark/White House Vigil connection remained unresolved when
the Circuit Court concluded, "the issue for decision is not factual, it is legal" (White
House Vigil, 476 F.2d 1518, 1528, 1529), and the District Court is mistaken when it relies
on White House Vigil to foreclose judicial review of the broader instant Complaint.
"The photographs contained in the administrative record depict the
activities of certain long-term demonstrations on the White House
sidewalk, ... and when the government witnesses testified about the
conditions on the sidewalk that prompted these regulations they referred
specifically to these same long-term demonstrators....
"Many of the exhibits offered by the government appear to be
unrelated to (the White House sidewalk) regulations. For example, the
government introduced into evidence numerous Park Police reports
concerning demonstrators 'camping' on the White House sidewalk, which
is not a subject addressed in the regulations. In addition, the 'camping'
problem was cited as prompting discussions on these regulations. In fact,
other regulations, not in issue, address the camping problem....
"Additionally, plaintiffs urge that the key fact that both versions of
the regulations just happened to proscribe all of the plaintiffs' then current
activities on the sidewalk cannot be regarded as mere coincidence.
"In the circumstances it would appear that plaintiffs' claim in this
regard in no wise can be characterized as frivolous; however in light of
this court's disposition of this case, it need not resolve this particular
issue." White House Vigil v. Clark, USDDC CA. No. 83-1243,
Memorandum Opinion, April 26, 1984, J. Bryant, ps. 11-15, Record,
Docket # 45, Exhibit 69, App. ps. 159-163.
Huddle Memo, p. 20.
Without checks or balance to restrain them, respondents persisted in pursuing the
same objective, fabricating a "Current Situation in Lafayette Park" (Fed. Reg., April 22,
1983, Vol 48, No. 79 p. 17352. Record, e.g., Docket # 45, Exhibit 68) to justify harsher
unrestrained regulatory power aimed at:
On April 27, 1983, after respondents suspended the delay of effectiveness of their
April 22nd rulemaking (without "good cause," see, App. ps. 150, 151), Petitioner
William Thomas was promptly arrested without probable cause, Docket # 1, para. 39.
Respondents' preoccupation with the same objective is evident in their description
of another purported "Current Situation in Lafayette Park":
"two individuals who have in the past and are presently maintaining a
daily demonstration in front of the White House." Id.
Respondents never disputed that signs or daily "occupation" (supra, ftn. 11) of
the White House sidewalk are constitutionally protected; instead, echoing the intent of
Mr. Watt's memorandum of January 13, 1983 (App. p. 178), they merely pointed
"(A) handful of demonstrators has occupied the White House sidewalk
daily for a year and a half." Fed. Reg., June 17, 1983, Vol. 48, No. 118
(Record, Docket # 45, Exhibit 78), p. 28053.
Although it is settled that "(o)ne is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it can be exercised in some
other place" (Schneider v. State, 308 U.S. 147 (1939)), respondents manipulated the facts
(infra, p. 28-31, 47) until the Circuit Court agreed that the alternative across the street
"to the availability of Lafayette Park, the Ellipse and the Mall as
alternative sites for (petitioners') activities." Record, Docket #45, Exhibit
69, J. Bryant, p. 27. App. p. 175.
was sufficient. White House Vigil at 1528.
In 1985 respondents, apparently still not satisfied that "demonstrations and
protests" had been sufficiently prohibited, portrayed yet another aspect of a constantly
shifting, euphemistic "Current Situation in Lafayette Park," where,
In still another "Current Situation in Lafayette Park, respondents' continued
interest in the "Thomas Vigil" was again obliquely expressed by reference to "a few
demonstrators who physically occupy ... space in the Park with signs." Fed. Reg.,
March 5, 1986, Vol. 51, No. 43, p. 7557, Docket # 131.
"(o)ver the past two years, two to six demonstrators have accounted for a
vast majority of the ... signs that continuously occupy ... Lafayette Park.
"One of these signs indicated that ... the ... signs belonged to two
persons who had been in the Park since June of 1981." Fed. Reg., August
20, 1985, Vol. 50, No. 161 (Docket, Docket # 45, Exhibit 129), p. 33572.
By this juncture of their ongoing onslaught against demonstrations in a "unique
public forum," respondents, with the assistance of the U.S. Attorney's Office, had
achieved a level of judicial tolerance which enabled them to summarily exonerate
themselves of any appearance of wrongdoing by merely publishing a one paragraph
summation of an "investigation" in the Federal Register. Id.
Because petitioners have never succeeded in securing a hearing, respondents were
able to transform a 1700-odd page collection of paper into an unnecessary, injurious
"The ACLU specifically questioned the motives of the National Park
service in promulgating these regulations, suggesting that the sole purpose
for the amendments is to harass certain individuals now demonstrating in
Lafayette Park. To support this proposition, the ACLU attached to its
comments several affidavits by Concepcion Picciotto, a long-time
demonstrator, that alleged ... the Park Service is allowing private citizens
to destroy demonstrators' signs." Id. p. 7560.
regulation (infra, A MEETING OF MINDS IN FURTHERANCE OF THE MAIN
CONSPIRACY, p. 32-34.) regulation without any direct judicial inquiry.
The "Thomas Vigil" endured, so respondents continued their concerted attack on
the "Current Situation in Lafayette Park,"
The Federal Register publication of October 4, 1990 was also at issue in this
Complaint. Infra, p. 42-43,
"(O)ver the past three years the National Park Service has received at
least five written requests for some action against the visual blight in
Lafayette Park. Typical of these complaints is the following....
"'(I) am not happy when I am forced to pass by, and am forced to see
... the people who camp and live in Lafayette Park ... in exercise of their
rights of political dissent'." Fed. Reg., October 4, 1990, Vol. 53, No.
193, p. 40680. S. CMPLT. Ex. 22.
It is this joint regulatory progression, which has eluded judicial attention, and
whittled away enough of the First Amendment to provide respondents with enough
latitude to wage their "ongoing conflict."
"[W]e expect that the relationships between the actors and the actions (...
the duration of the actors' joint activity) are relevant in inferring an
agreement in a civil conspiracy." Halberstan v. Welch, 705 F.2d 481
(parentheses in original).
c) FACTUAL ISSUES IN DISPUTE PRECLUDE DISMISSAL
To state a claim under 42 USC Section 1985(3), petitioners need only allege:
The circumstances now presented are almost indistinguishable from those
presented by the controlling precedents, for example:
"1) a conspiracy; 2) for the purpose of depriving... any person ... of the equal
protection of the laws, or of equal privileges and immunities under the laws;
and 3) an act in furtherance of the conspiracy; 4) whereby a person is either
injured in his person or property or deprived of any right or privilege of a
citizen of the United States." Hobson v. Wilson, 737 F.2d 1, 14.
While it is apparent that the lower courts have not applied the principles
articulated in Hobson and Dombrowski here, they fail to provide any reason for
deviating from those principles, or for failing to enjoin criminal prosecutions affected by
an unconstitutional regulatory enforcement policy. See. Baggett v. Bullitt, 377 U.S. 976;
Ex Parte Young, 209 U.S. 122. E.g., Docket #'s 21, 80.
To dismiss the instant complaint in the face of "facts in support of (the) claim
which would entitle (petitioners) to relief" (Conley v. Gibson, 355 U.S. 41, 45-46), the
District Court relies squarely on Thomas II, and respondents' dubious portrayal of
Petitioner William Thomas' arrest record. Even assuming respondents were correct
with respect to Thomas' convictions -- which, in light of "Defendant's Exhibit 4"
(Huddle Memo, p. 4, ftn. 4, also infra p. 38, supra p. 11) is impossible -- it was pointed
"Plaintiffs alleged in their complaint that from [1981 to date]
defendants engaged in a variety of legal and illegal activities in a specific
effort 'to disrupt and interfere with the plaintiffs' [religious and] political
activities, including urging violent or unlawful actions, and supplying the
public and or news media with false information about the plaintiffs and
their plans.' Plaintiffs also alleged that 'some or all of the activities of
defendants' were conducted pursuant to a plan ... which they contended,
was 'designed to conduct surveillance upon and to cause disruption of the
activities of what the defendants regarded as the ["Thomas Vigil"].'
Plaintiffs claimed that because these actions were undertaken expressly to
disrupt their lawful activities, they violated, inter alia, plaintiffs' First and
(Fourth) Amendment rights.
"The extraordinary nature of these charges makes this an easy case.
Whatever authority the Government may have to interfere with a group
engaged in unlawful activity, and however it may be permitted to impede
or deter rights of lawful association as a by-product of legitimate
Government actions, it is never permissible to impede or deter lawful civil
rights/political organization, expression or protest with no other direct
purpose and no other immediate objective than to counter the influence of
the target associations." Hobson at 27 [substituting], emphasis in original,
see also, Dombrowski v. Pfister, 380 U.S. 479, 482.
out that germaine questions escaped review even in cases that resulted in convictions.
Thomas II was dismissed "without prejudice" (696 F. Supp. 714), and never
disturbed Magistrate Burnett's factual findings. The record of this case shows Magistrate
Burnett is the only judicial officer who has heard any testimony touching on the veracity
of the respective parties to this "ongoing conflict."
""(Thomas) alleged that a police officer was kicking (him) in the head, for
example. The police officer got on the stand and admitted that he was
kicking (Thomas), but he said he was kicking (Thomas) in the foot. Judge
Oberdorfer didn't quarrel with the fact that the police officer was kicking
(Thomas), but he never determined where the police officer was kicking
(Thomas) or what the circumstances (were)." See, Docket # 45, Exhibit 84,
Declaration of William Thomas, compare Exhibit 85, testimony of
Officer Sherba, United States v. Thomas USDC Cr. 83-243; also App. p. 98.
Taking petitioners' allegations as true, there emerge considerable sequences of
sub-conspiracies ("meetings of minds") all involving Respondent Robbins and various
other principles specifically identified in petitioners' pleadings.
Taken separately, each of these sub-conspiracies creates a substantial enough
possibility of a conspiracy to merit a trial. Taken together these sub-conspiracies suggest
a broader conspiracy, intended to deprive petitioners of constitutional rights under color
of regulatory enforcement.
"(T)he bald assertions of the federal defendants that no conspiracy existed
to deprive plaintiff of his First Amendment rights, that probable cause
always existed to arrest him and seize his signs, and that a minimum
amount of force was always utilized in effectuating plaintiff's arrests, are
not sufficient to rebut his detailed allegations, supported by several
affidavits and declarations, that he was unlawfully deprived of his
constitutional and civil rights." Mag. Memo, App. p. 50.
i) TWO BRIEF MEETINGS OF MINDS TO ILLUSTRATE CAUSE AND EFFECT OF
RESPONDENTS' MAJOR CONSPIRACY
Petitioners alleged that respondents conspired to place "Administrative policy
above Constitutional law for the purpose of stifling plaintiffs' ... religious exercise ... free
expression, and ...freedom of thought," and acted through "force and violence," and
furthered their conspiracy,
Petitioners have been repeatedly injured in both person and property and
deprived of rights and privileges of a citizen of the United States. For example,
"(b)y creating an atmosphere in which individuals would be deprived of
the protection of the most Fundamental Laws (i.e., 1st, 4th, 5th, 9th and
14th Amendments); 42 USC 1983, 1985(3)(4), and 1986; and the
Administrative Procedures Act] of the United States of America,
defendants have wielded Title 36 CFR as a sledgehammer to fracture the
foundation of civilization, thus jeopardizing the liberties of each and every
person within the legal jurisdiction of the United States and, therefore, the
entire structure of democracy." Complaint, October 27, 1989, para. 81, see
also, S. CMPLT. e.g., Counts Twenty-Nine, Thirty .
A second of many examples documented in the Complaint which escaped
comment by either respondents or the District Court, occurred on or about November
10, 1986, when Respondent Irwin, acting in consort with other agents, under color of
Respondent Robbins' allegedly unnecessary sign-attendance requirement (supra, pg. 20-
21; infra p. 34), physically assaulted and imprisoned Petitioner Thomas and seized his
signs, without probable cause. Docket # 1, para. 57.
These undisputed facts were supported by sworn declarations, and photographs
depicting Respondent Irwin applying a chokehold to Petitioner William Thomas' neck
(App. ps. 179, 180), in one of the many incidents which never went before a factfinder.
"plaintiff's signs were 'broken up with sledgehammers by Park Service
employees under the supervision of Park Police' on June 23, 1984." Mag.
Memo, App. p. 49.
"(W)hat the government has done is to deprive us of any protection from
Respondents have supplied explanations for neither the sledgehammer nor
chokehold incidents, and the District Court provides no substantial reason to assume
that petitioners, indeed every person within the legal jurisdiction of the United States, 
are not entitled to relief from abuse of person and property.
the police. They have passed these regulations... (I)f we're given the
opportunity to get to the facts, we'll show that the regulations have been
selectively applied  against us... (B)ecause the regulations give the
impression that we're criminals, the police officers behave in a way that
they wouldn't normally behave towards us. We would like to hope -- to
think they wouldn't normally behave that way." App. p. 118.
ii) A RECENT UNEXAMINED MEETING OF MINDS INTENDED TO STIFLE OPPOSITION TO WAR
Notwithstanding the District Court's opinion that, "plaintiffs do not state facts
that suggest there was an invidious conspiracy" (Huddle Memo, pg. 14), petitioners
respectfully note another instance where they alleged the elements required by Hobson,
but where the lower courts summarily dispatched petitioners' claims even though
respondents neither disputed, or even addressed petitioners' claims.
With the onset of armed hostilities in the Persian Gulf, petitioners began to
demonstrate with prayer drums. It was a very effective method of communication which
received considerable attention in the news media and attracted many participants,
[12 The District Court limited its discussion of selective enforcement to the
Presidential Inauguration, (Huddle Memo, ps. 19-21), but neglected to comment on other
examples contained in the Complaint, which had been at issue for years. E.g., App. p.
[13 This matter was initially filed as a class action. However, owing to their failure to
comply with D.C. Local Rule 203(b), petitioners abandoned that claim on appeal. See,
Record, Opposition by Appellant William Thomas to Appellees' Motion for Summary
Affirmance, p. 1, n. 1, filed November 27, 1991.]
without causing any harm. S. CMPLT. paras. 8 & 9.
On January 25, 1991 Respondent Bush publicly stated, "Those damned drums
are keeping me awake all night." Id para. 15. Later, on February 5, 1991, the
President characterized his "damned drums" statement as "hyperbole," and made
statements regarding "60 decibels," and "incessant drummers," indicating his personal
awareness of the entire operation. S. CMPLT. para. 31.
Nonetheless, on January 27, 1991, under color of D.C. Code, 22-1121 and 36
C.F.R 2.12 -- which was the time and regulation at issue in United States v. Doe, 968
F.2d 86 (1992), infra p. 44 -- respondents, under direct supervision of Mr. Robbins,
began a pattern and practice of enforcement which resulted in three arrests and
incarcerations of petitioner Thomas, for which no probable cause was ever shown. E.g.,
App. ps. 240-242.
In light of Doe, all police activity involving drums depicted in the videotape (@
22.30-44.57) would appear to illustrate the unconstitutional enforcement of 36 CFR 2.12.
This unjustified regulatory enforcement had the effect of discouraging, disrupting,
and finally stifling peaceful opposition to war. S. CMPLT. paras. 13, 15, l8, l9, 20, 24,
30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87 & Count 17.
Because respondents offer no alternative explanation, it may reasonably be
inferred that President Bush didn't like the drums because they were an effective voice
of dissent, but knew the drums were protected under the First Amendment. Therefore,
one might also infer that, together with Respondent Robbins, and others, the President
conspired to silence the drums, and that his "hyperbole" was actually a lie intended to
engender public animosity against petitioners and drum up sympathy for the
conspirators' wrongful assault on the Constitution.
These undisputed facts raise "genuine issues that properly can be resolved only
by" trial. Anderson v. Liberty Lobby, 477 U.S. 317, 324 (1988).
That the District Court failed to draw these very evident inferences was most
unfavorable to petitioners.
"(Respondents) must do more than simply show that there is some
metaphysical doubt as to the material facts." Frito-Lay v. Willoughby, 863
F.2d 1029, 1034.
aa) THE LOWER COURTS ERRED IN DISMISSING CLAIMS
AGAINST THE PRESIDENT.
Citing Minnesota Chippewa Tribe v. Carlucci, 353 F. Supp 973, 976, "as a rule
joinder of the President ... is generally unnecessary," the District Court dismissed "all
claims against President Bush." Huddle Memo, pg. 2, ftn 1.
As a general rule the joinder of the President is very difficult, but it is not
impossible. United States v. Nixon, 418 U.S. 683. Given the intimate presidential
involvement in oversight of police enforcement actions suggested from the facts
presented here, this case presents one of those exceptional circumstances where joinder
of the president is necessary to obtain relief.
Petition for Certiorari - Continued
"It is not consistent with the policy of our political institutions, or the
manners of the people of the United States, that any ministerial officer,
having public duties to perform, should be above the compulsion of the
law, in the exercise of those duties." Marbury v. Madison, 1 Cranch 149
(1803). See, IMPORTANCE OF THE CASE, infra, p. 55, 59.
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