Petition for Certiorari


Predicated on the validity of factual representations proffered in two of respondents' motions in the District Court, petitioners were compelled to file two motions for sanctions.

Despite the fact that the veracity of both issues challenged by petitioners' motions for sanctions were cited by the District Court as reasons for terminating the case, and without holding any hearing, the court summarily denied both motions on the grounds, that "plaintiffs have failed to show cause for imposing sanctions against defendants."


Huddle, Memo, pg. 24, ftn. 20.

On November 14, 1991 the respondents filed a Motion for Summary Affirmance, contending that "(t)he district court had no obligation to conduct a hearing into petitioners' motions for sanctions." Id. pg. 8.

The Circuit granted respondents' motion without discussion.

1) The First Motion for Sanctions

The first motion for sanctions (Docket # 51, February 8, 1989) was prompted when respondents' counsel in the District Court, AUSA Michael Martinez, represented that, "(p)laintiffs' religion is in any case newly found.... (R)eligious belief was never asserted as a basis for their actions until early 1987." Record, Docket # 48, Federal Defendants' Reply to Plaintiffs' Opposition to the Motion to Dismiss and to All of Plaintiffs' Other Submissions, January 27, 1989, page 5, ftn. 3. "(S)anctions may be imposed, if a reasonable inquiry discloses the ... motion ... is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument ... or (3) interposed for any improper purpose...." Westmoreland v. CBS, 770 F.2d 1168, 1174.

Owing to his participation in previous litigation, Mr. Martinez certainly should have known his assertion concerning "religious belief" was not well grounded in fact. As seen above, "animus" is a crucial aspect of this case, so the issue of petitioners' religious beliefs took on added significance.

The claim seemed so egregious that petitioners' initial motion for sanctions merely


referenced quotes from the previous litigation, detailing religious claims dating back to 1981.

Next, Mr. Martinez opposed (Record, Docket # 51) petitioners' motion for sanctions by reiterating the misrepresentation that "religious beliefs were not asserted as a basis for plaintiffs' actions until early 1987." Federal Defendants' Opposition to Plaintiffs' Motion for Sanctions or Other Disciplinary Action, February 17, 1989, pg. 2. So adament was Mr. Martinez that he even threatened to file for sanctions against petitioners. Id. pg. 4, ftn. 4.

On March 2, 1989 (Record, Docket # 55) petitioners responded to respondents' opposition in greater detail, including documents from the previous litigation showing Mr. Martinez's earlier knowledge, and undisputed declarations by five of the plaintiffs.

Respondents had no further comment.

2) The Second Motion for Sanctions

Petitioners' second motion for sanctions (Record, Docket # 103, April 15, 1991), challenged -- among other issues [22] -- the veracity of certain factual assertions with respect to the increase of police activity in the area of Lafayette Park, and the manner of enforcing the regulations, which were contained in the Declaration of Major Carl Holmsberg in Support of Federal Defendants' Opposition to Plaintiffs' Motion to Renew their Motions for TRO. Record, Docket # 101, April 8, 1991.

In dismissing this action the District Court determined "there was a substantial

[22 For one thing, respondents' three (3) page motion, "responding" to the detailed allegations of petitioners' March 21, 1991 pleadings, was attached to 1 3/4 inches of unreferenced, unexplained, and often totally unrelated papers.]


increase in activities ... in Lafayette Park ... and a corresponding increase in Park Police presence and enforcement of the ... regulations." Huddle Memo, pg 18. As it happens, this claim was precisely put at issue in petitioners' Second Motion for Sanctions.

In moving for summary affirmance of the District Court's denial of sanctions, respondents cited, very generally, MacArthur Area Citizens Association v. Republic of Peru, 823 F. 2d 606, and Westmoreland, supra. Under the present circumstances neither of these cases seems to support respondents' contentions: "The signature of an attorney constitutes a certificate by him that the pleading, motion, or other paper ... is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiation, shall impose upon the person who signed it ... an appropriate sanction...." Westmoreland, at 1173, emphasis in original.

Having read MacArthur, a case in which, after conducting hearings, the court determined that the "attorneys acted in good faith," petitioners are still clueless as to how that case might bolster respondents' position.

Respondents purported, "Nothing in the rule or case law mandates that a district court conduct a hearing into a motion for sanctions." Appellees' Motion at 8.

However, the clearly stated purpose of the rule, coupled with the most rudimentary common sense, dictates that a hearing is the only method of trying fact.

While it is true that courts have "wide discretion" in the matter of sanctions, it is also clear that the court's discretion is not boundless, and that case law strongly indicates a hearing is expected when factual, as opposed to legal, issues are raised.


"Under amended Federal Rule of Civil Procedure 11 ... the new provision that the court 'shall impose' sanctions mandates the imposition of sanctions when warranted by groundless or abusive practices. The rule's provision that the court 'shall impose' sanctions for motions abuses thus concentrated the district court's discretion on the SELECTION of an appropriate sanction rather than on the DECISION to impose sanctions." Westmoreland at 1174, EMPHASIS in original, see also, AM Int'l Inc. v. Eastman Kodak, 39 Fed.R.Serv.2d (Callaghn) 433, Eastway Construction Corp v. City of New York, 762 F.2d 243, 254 n. 7.

The District Court was bound to take "(t)he factual allegations of the complaint (as) true and liberally construed in favor of (petitioner)." Huddle Memo, p. 7. The facts impugned here go to the allegations of the complaint. "Resort to frivolous ... maintenance of baseless defenses and harassment of one's opponent are practices that ... tend to impose unjustified burdens on other parties, frustrate those who seek to vindicate their rights in courts, obstruct the judicial process, and bring the civil justice system into disrepute." Sanctions Under the New Federal Rule 11, A Closer Look, 104 F.R.D 182 (1985).

Petitioners supplied documents in support of their challenge to the veracity of Major Holmsberg's factual allegations. Respondents supplied nothing but argument to support their baseless defense.

In dismissing the complaint, largely on the strength of crediting the very assertions challenged in petitioners' motions for sanctions, without even conducting "a reasonable inquiry" to test the validity of those assertions, it seems the Court was in error. Even "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821. And this access must be "adequate, effective, and meaningful." Id. at 822.

Particularly where the Motions for Sanctions challenged claims so integral to the complaint itself, it was an error for the District Court not to have held a hearing to


determine which side was telling the truth, and the Circuit Court erred in summarily affirming the District Court's denial of petitioners' Motions for Sanctions.


The rule of law is at stake. "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, supra, 163.

Petitioners have sincerely held religious beliefs. "There is only one reason I bother to speak to other people, that is to provoke them into thinking about the existence of God. Because if they continue to believe there is no justice beyond what we can see in one lifetime, then the rule of the world will continue to be Might is Right -- and it's not. Let us reason together." App. p. 216.

Petitioners have been operating on the heart of democracy -- freedom of thought - - manifest in the free exercise and expression of religious convictions. "Freedom of conscience and freedom to adhere to such religious ... form of worship as the individual may choose cannot be restricted by law ... thus the First Amendment embraces two concepts -- freedom to believe and freedom to act." Cantwell v. Connecticut, 310 U.S. 303.

Assuming petitioners' claims are true, we are confronted by a monstrously complex case of deception, implemented by unjustified force, violence, abuse of judicial process and seizure of property under color of legitimate authority. "The settled principle (of conspiracy) derives from the reason of things in dealing with socially reprehensible conduct; collective criminal agreement --partnership in crime -- presents a greater potential threat to the public then individual derelicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than


those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offence which is the immediate aim of the enterprise." Iannelli v. United States, 420 U.S. 770 (added).

In Spence v. Washington, the Supreme Court was, "'confronted with a case of prosecution for the expression of an idea through activity ... (a)ccordingly, (the Court) must examine with particular care the interests advanced by (the government) to support its prosecution.' Id. 418 U.S. at 411." Texas v. Johnson, 109 S. Ct. 2541, 2542.

The lower courts have failed to conduct such a careful examination. Rather than deal with the delicate matter of the wild claims advanced by Defendants' Exhibit 4 (supra p. 10, 23, 38), the Court merely suggests that "evidence of plaintiffs' various convictions is available in published opinions of this Court." Huddle Memo p. 4 n. 4. "(T)he fact that this rule establishes a criminal offense entailing possible imprisonment for the violator is even more reason for this court to be wary...." Felton v. United States, 96 U.S. 703; see also, Monell v. New York, 430 U.S. 690, 691.

The courts stopped short of examining the "evidence" of petitioners' convictions, but petitioners feel that "evidence" is instructive. Other courts have viewed the "on- going conflict" with greater restraint, and less prejudice, e.g.: "THE COURT: Let me ask you this ... hasn't it been one of those things where he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."

"THE GOVERNMENT: He plays games.

"THE COURT: Well, I don't know who is playing a game really."


App. ps. 282-284, United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983.

Throughout, petitioners have done little more than think, express thought, and, occasionally, fall asleep, which is no real "problem." "The Government stated that it had 'no interest' in prohibiting any of these defendants from sleeping in the park and that its only interest ... was in 'enforcing the regulations' at issue.

"When it has been shown that an individual has acted contrary to law out of a 'sincerely held religious belief,' it is the Government's responsibility to show that it has a compelling interest in the law at issue and that it has enforced that law with the least restrictive means with respect to that religious belief. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Murdock v. Pennsylvania, 319 U.S. 105 (1949); see also, Thomas v. Review Board, 450 U.S. 707 (1981); L. Tribe American Constitutional Law, Sec. 14-10. The Government did not offer a scintilla of evidence to that effect. Nor did it proffer a single reason sufficient in law to support a claim of compelling interest." App. ps. 300-301, United States v. Thomas and Thomas, Cr. No. 87-62, J. Richey, filed April 23, 1987, reversed, 864 F.2d 188.

Petitioners have been harmless. "The defendant and others who are maintaining vigils in Lafayette Park may be eccentric, but they have stood up day and night for their beliefs in spite of repeated arrests and convictions and the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of a city at night. Their protests have been peaceful. They are not venal criminals, and application of criminal sanctions to them puts strain on the criminal justice system. That system is designed to protect the public from crime, to condemn and punish criminals, and to deter others from committing crime. The justification for condemning and punishing a peaceful protester like defendant is not immediately apparent. The effectiveness of the criminal sanction as a protection of the public or as a deterrent to repetition when applied to persons like defendant is also questionable." United States v. Harmony, 702 F. Supp. 295, 299.

Petitioners may be eccentric, but they've tried to be reasonable. "This Court in its wisdom may decide to work out an amicable solution which would enable me to legally continue my round-the-clock vigil while staying out of jail (that would save) the taxpayers a considerable sum of


money in police, court and prison funds." Record, Exhibit 37, United States v. Picciotto and Thomas, USDC Cr. No. 83-0056, J. Bryant, July 7, 1983, transcript, App. p. 317.

Unreached are several most significant constitutional issues. "The Court's ruling today does not mean that the Government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed....

"To continue with this trial would transform the trial from a prosecution into a persecution, and, accordingly the respective motions for judgment of acquittal are ... granted." App. p. 146, Docket # 45, Exhibit 105, ps. 1026, Transcript, United States v. Thomas, Thomas, Thomas, et. al., supra.

Due to petitioners' religious obligation to be in the park, the Government has given conscientious courts a moral dilemma problem: "COURT: If I follow the government and find him guilty, what am I supposed to do with him? He doesn't have any money. If I put him on probation, he's going to be right out there doing the same thing. The criminal penalty isn't enough to deter him, point 1. Point 2, I have a hard time sleeping putting him in jail, actually, for -- what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world."

"You don't want to put him in jail, huh?" App. p. 309, United States v. Picciotto and Thomas, USDC Cr. No. 82-358, J. Bryant, July 5, 1992, Record, Docket # 45, Exhibit 36.

"THE GOVERNMENT: We are going to ask for that.

"THE COURT: For how long? What is the maximum period of time?

"THE GOVERNMENT: Six months. If your honor would like to send them to Sacramento to demonstrate in front of the state capitol out there we wouldn't have any strong objection." Id p. 312.

Finally, these arrests have left the Circuit Court with a "puzzle." A puzzle which the court recognized might be "a tragedy." United States v. Thomas & Thomas, 864 F.2d, 199.


Truth ("actual reality," id., at 192) would demand determining whether respondents merely created a judicial illusion making it appear that petitioners "repeatedly ran afoul of the regulations." "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury, at 161.

The real tragedy would be that respondents have done precisely as petitioners claim, while the judicial system was uncivil enough to ignore the factual dispute of whether respondents planned the scheme to halt the exercise of petitioners' rights. "To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure." 22 Col.L.R. 72, see also, Morisette v. United States, 342 U.S. 246, 255.

Petition for Certiorari - Continued

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