Petition for Certiorari


The District Court opined, "(p)laintiffs fail ... to recognize that the regulations are constitutional under controlling precedent...." Huddle Memo, at 2.

On the contrary, the record shows, petitioners are keenly aware of the judicial


history of the regulations at issue. Record, Docket # 78, Ellen Thomas' Motion to Supplement the Representation of Plaintiffs' Constitutional Claims Against the Regulations at Issue, December 12, 1989. App. ps. 181-183.

"(M)any of the issues raised in plaintiffs voluminous pro se complaint cannot be resolved by the pending motions. At a hearing held on May 8, 1985, plaintiff identified several claims that implicate concerns going beyond whether DOI's regulations are constitutional." Thomas II, (USDC CA. 84-552) Order, June 3, 1985, App. ps. 56-57, also, App. ps. 61-62.

Even without challenging the constitutionality of the White House Sidewalk Regulation, it is apparent that petitioners have advanced non-conclusory allegations of an unconstitutional enforcement policy which was applied against them, and which has never been examined.

After Mr. Watt declared his "intention" of prohibiting "demonstrations and protests" in Lafayette Park (Record, Docket # 1, para. 35, App. p. 178),
"(i)n March 1983 Watt received a briefing from the principal drafter of the new regulations and told him to 'keep up the good work' ...." White House Vigil v. Clark, 746 F.2d 1518, 1527.

Respondents knew it would be unconstitutional "to prohibit such activities and require that they take place on the Ellipse" outright; thus it could easily be inferred that they had a meeting of minds and agreed to accomplish, in concert with others, by subterfuge what they could not accomplish outright.

It is undisputed that, on March 11, 1983, very shortly after a second meeting with Mr. Watt, Mr. Robbins ("the principle drafter") kept "up the good work" by participating -- in concert with agents of the U.S. Park Police, U.S. Secret Service, and D.C. Metropolitan Police -- in a prearranged scheme to remove appellant's


then-legitimate signs from the White House sidewalk.

"I was summoned down there by the officials of the Uniformed Secret Service and by members of the United States Park Police to address a problem they were encountering with a protester...." Record, Docket # 45 Exhibit 49, April 8, 1983, Grand Jury testimony of Respondent Canfield (App. ps. 184-185), compare, Docket # 45 Exhibit 50, testimony of Park Police Lt. Merrillat (App. ps. 186-187).

As a result of this joint action, Petitioner William Thomas was arrested. The Declaration of William Thomas in Support of the Amended Complaint, November 23, 1988 (App. ps. 188-205), illustrates the scope of appellees' concerted action, and that no regulation justified the action. S. CMPLT. para. 76.
"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." Record, Docket # 45, Exhibit 69, App. p. 163, see also, White House Vigil at 1527.

The incidents of March 11, 1983, at issue here, were not presented in White House Vigil, where the judicial inquiry into this matter ended at January 13, 1983.

Respondents prosecuted Thomas, allegedly through inaccurate information and false testimony.
"The Park Police originally tried to get the U.S. Attorney to paper the case as arson, but the papering people refused.... According to AUSA Dan Cisin ... the Park Police left, then came back about an hour later and cornered the chief papering assistant in an office for an hour and a half until the AUSA agreed to paper the case as a felony destruction of property -- the White House gate, just to get rid of them...." Record, Docket #45, Exhibit 60. Public Defender Memorandum. App. ps. 209-210.

In that case, thank God, justice finally prevailed, when the District of Columbia vindicated Thomas, holding:
"Malice ... imports ... the presence of ... an actual intent to cause the


particular harm which is produced or harm of the same nature." United States v. Thomas, 557 A.2d 1296, 1299 (Dist. Col. 1989) ("Thomas III").

It was noted that Thomas claimed he "had been repeatedly arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities" (Thomas III, 1297), and "challenged the legal basis for (respondents') actions." Id. "Thomas pointed out, correctly, that the District has no valid vagrancy law. See, Ricks v. United States, 134 U.S. App. D.C. 201; 414 F.2d 1097." Thomas III, 1298, n. 4.

From this configuration of events one could reasonably infer that respondents had a meeting of minds, adopted, and acted to further, an "affirmative plan or policy ... showing their authorization or approval of such conduct." Rizzo v. Goode, 432 U.S. 362 (1976). Supra, p. 14-16, HEIGHTENED PLEADING STANDARD. Yet, despite years of litigation (see, Related Cases, supra, p. viii), the question of whether Mr. Robbins, agents of the Park Police, Secret Service, Metropolitan Police, et. al, used unlawful force to stifle constitutionally protected expression, under color of regulation, has completely evaded inquiry. S. CMPLT. para. 76.


The District Court made an error in believing respondents "would be entitled to a defense of qualified immunity." Huddle Memo at 19.

Petitioners agree that when rendered in December, 1986, Magistrate Burnett's findings with respect to respondent Canfield's involvement in the events of March 11, 1983 seemed reasonable. Huddle Memo pg. 22. But that was prior to the decision in Thomas III in April, 1989.

Thomas III showed that petitioner obviously wanted the constitutionally protected


signs on the White House sidewalk; that respondents' objective was to take the signs off the sidewalk, and in their zeal for the "good work," it didn't matter that no regulation justified their concerted effort. [14]

"'If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct....' (T)he Government actor is presumed to have known about it, unless he can bring forward undisputed facts establishing that because of extraordinary circumstances he neither knew nor should have known of the unlawfulness, summary judgment in his favor must be denied." Hobson, 25, citing Harlow v. Fitzgerald, 457 U.S. 800, 818.

It was alleged, and, in any light favorable to petitioners, must be inferred that in removing petitioners' signs from the sidewalk, respondents' intentions were malicious.
"(A)n official would not receive qualified immunity if he 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff] or if [the official] took the action with the malicious intention to cause a deprivation of constitutional rights or other injury'." Hobson, at 24, citing Wood v. Strickland, 420 U.S. 308 at 322.

No previous litigation has determined "probable cause" for respondents' actions on March 11, 1983. [15] Hence, "the ultimate issue in the present case (now becomes respondents') subjective state of mind." Thomas III, 557 A.2d 1296, 1300 (substituting).

Claims raising issues of intent, good faith, or other subjective feelings, are

[14 When prosecuting Thomas, respondents argued that petitioners' "signs" were "structures." In fact the largest sign (App. p. 204), was retrieved by petitioners and returned to the White House sidewalk because "it didn't violate regulations" (App. ps. 211-212), until the respondents promulgated the White House sidewalk regulation on July 19, 1983. See also, CoC, para. 64. ]

[15 Thomas III dealt exclusively with respondents' allegations, and did not even begin an inquiry into petitioners' instant claims.]


ordinarily best reserved for resolution by a trier of fact. See, White Motor Co. v. United States, 372 U.S. 253 (1953). Consequently, petitioners submit, the lower court's summary action was not justified.


One could easily infer that respondents were not pleased by the fact that, despite the "camping" and "White House sidewalk" regulations, petitioners managed to maintain their signs and presence in Lafayette Park. App. p. 211.

At least as early as March 5, 1985, fully a year before he participated in the Federal Register publication of 36 CFR 7.96 (g)(x)(B)(2), Mr. Robbins knew a sign attendance regulation was unnecessary, and, thus, would be in violation of the Administrative Procedure Act.
"(T)he majority of the demonstrations (then) occurring in Lafayette Park (were) long-term vigils which continue(d) 24 hours a day. When one of the participants of these demonstrations departs the area, another demonstrator takes his or her place in watching the group signs. Therefore, a regulation prohibiting unattended signs would be of limited use in Lafayette Park." Docket # 45, Exhibit 126, App. ps. 213-214.

Because respondents knew the sign attendance requirement was unnecessary, in concert with others, Mr. Robbins crafted an "Administrative Record" to justify a needless regulation.

Petitioners alleged the Administrative Record to be a collection of "exaggerations, misrepresentations, and falsehood...." E.g., Docket #45, Clarification of Complaint ("CoC"). para. 131.

Petitioners also objected to the Administrative Record in oral argument before the District Court.


"Who is William Hale? ... Some people have suggested that William Hale might have been a Government agent. I don't know....

"Mr. Robbins might know who Mr. William Hale is, because Mr. Robbins included all of William Hale's permit applications into the Administrative Record. There's dozens and dozens of police reports about William Hale in the Administrative Record. Who is William Hale? William Hale is the individual that the Government relies on for the latest of these three regulations, and without William Hale, (this) regulation (is) baseless." App. ps. 114, 115.

Respondents merely argued that the Administrative Record was too "voluminous" to conveniently submit into the record of the instant case. See, Federal Defendant's Motion to Dismiss, December 5, 1991, Memorandum pg. 28, ftn. 12.

There has never been an evidentiary hearing to examine the veracity of respondents' mammoth Administrative Record. Here, the District Court opted to rely on stare decisis: United States v. Musser, 873 F.2d 1513. In Musser, the records show, the Court considered no facts, but relied instead on White House Vigil, (Huddle Memo, pg. 20), which, as has been shown (Thomas III, supra), left core questions unresolved.

The Record shows that petitioners objected, at some length (e.g., Docket # 96 Plaintiffs Memorandum in Support of Motion for TRO, March 21, 1991, ps. 12-16) to the factual accuracy of the Musser Court's assessment of the Lafayette Park regulation.

For example, apparently confusing the Lafayette Park sign regulation with the White House sidewalk regulation, where "security concerns" were purported, the Musser Court held,
"(t)he rule is ... tailored to serve the substantial interest in the security of the White House, high government officals and the public." Musser, 1517-18.

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.


"(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.

"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.

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 [16] 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. [17] Rather it addresses the pattern of enforcement.

[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 met...." ]

[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 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.

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.
"(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.

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 "camping."
"[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).

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


seriously disrupt their protected activities.

Petition for Certiorari - Continued

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