As petitioners pointed out to the District Court, the simple fact is that
respondents never purported this particular regulation was "tailored to serve" any
"interest in the security of the White House, high government officials and the public."
See generally, Fed. Reg. Vol. 51, No. 43, 7556-7566, March 5, 1986.
Even assuming the Musser court was correct with regard to the facial
constitutionality of the Sign Attendance regulation, that opinion would not preclude
asking whether assault, false arrest, false imprisonment and the arbitrary seizure of
signs and literature, by a federal agent acting under color of this regulation and without
probable cause (e.g., supra, pg. 20-21, 24-25), Respondent Irwin, November 10, 1986),
amounts to an unconstitutional application of the regulation.
In any event, for the parties' positions to be so clear as to merit summary action
on this point, would require an evidentiary hearing to explore not only the
Administrative Records of the March 5, 1986 "Lafayette Park" and October 4, 1990
"Three Cubic Foot" regulations, but also to examine the enforcement of those
regulations against petitioners.
) ANOTHER UNEXAMINED MEETING OF MINDS PURSUING THE SAME OBJECTIVE
"(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.
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  which allowed a continuous presence -- including sleeping and
possession of certain property. See, Thomas II, 712-716.
The complaint does not challenge the constitutionality of the "camping"
regulation.  Rather it addresses the pattern of enforcement.
"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 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
[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.]
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.
"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.
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 @ l0l.50-l02.25;
and Supra, p. 16-21; compare, infra, p. 57IMPORTANCE 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
"(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.
Unless legitimate sleep during the course of a vigil from the illegitimate camping,
petitioners will continue to be subjected to arrests which serve no legitimate purpose, but
"[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).
seriously disrupt their protected activities.
Petition for Certiorari - Continued
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