IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1992
_________________
No. 92-6732
_________________
MARY HUDDLE, et. al.,
Petitioners,
v.
RONALD REAGAN, et. al.,
Respondents
_____________________
SECOND ERRATA TO
PETITIONERS' APPLICATION FOR WRIT OF CERTIORARI
_____________________
Petitioners hereby submit a Second Errata to their
petition for Writ of Certiorari, filed November 20, 1992
Delete pages ii, iv, xii, 1, 3, 4, 5, 7, 8, 10,
11, 13, 17, 18, 19, 21, 23, 24, 26, 28, 32, 33, 34, 35, 36, 37,
38, 39, 40, 42, 43, 44, 46, 47, 48, 49, 50, 53, 58 and 59 from
Petition for Writ of Certiorari, substitute pages ii, iv, xii,
1, 3, 4, 5, 7, 8, 10, 11, 13, 17, 18, 19, 21, 23, 24, 26, 28,
32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, 46, 47, 48, 49,
50, 53, 58 and 59 appended hereto.
Respectfully submitted,
_________________________________
William Thomas
2817 11th Street N.W. Apt. B
Washington, D.C. 20001
(202) 462-0757
CERTIFICATE OF SERVICE
I, William Thomas, hereby certify that, on December 3, 1992,
I served copies of Petitioners' Second Errata to their Petition
for Certiorari to Kenneth W. Starr, Solicitor General, U.S. Department
of Justice, Washington, D.C. 20530, and Ron Garvin, United States
Court of Appeals for the District of Columbia Circuit, 3rd and
Constitution Avenue, NW, Washington, D.C. 20001 by placing them,
postage prepaid, in First Class U.S. Mail.
_________________________
William Thomas, Petitioner pro se
PARTIES TO THE CASE IN THE DISTRICT COURT
Petitioners - Appellants - Plaintiffs
MARY HUDDLE
P.O. BOX 27217
WASHINGTON, D.C. 20038
CONCEPCION PICCIOTTO,
WHITE HOUSE ANTI-NUCLEAR VIGIL,
P.O. Box 4951
Washington, DC 20009
ELLEN THOMAS,
PEACE PARK ANTI-NUCLEAR VIGIL,
2817 11th Street, N.W.
Washington, D.C. 20001
WILLIAM THOMAS
PEACE PARK ANTI-NUCLEAR VIGIL,
2817 11th Street, N.W.
Washington, D.C. 20001
PHILIP JOSEPH
P.O. BOX 27217
WASHINGTON, D.C. 20038
SUNRISE S. HARMONY
P.O. BOX 27217
WASHINGTON, D.C. 20038
SCOTT GALINDEZ
P.O. BOX 27217
WASHINGTON, D.C. 20038
KARIN LOVE CARTWRIGHT
2817 11th Street, N.W.
Washington, D.C. 20001
Respondents - Appellees - Defendants
GEORGE HERBERT WALKER BUSH
1600 Pennsylvania Avenue, N.W.
Washington, D.C.
MAJOR HOLMSBERG, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
CAPTAIN BARRETT, USPP
1100 Ohio Drive, S.W.
Washington, D.C.,
LT. HUGH IRWIN, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
LT. CLIPPER, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
SGT. McNALLY, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
SGT. RULE, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
OFFICER FEREBEE, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
PRIVATE KEVIN FORNSHILL, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
PRIVATE LESLIE WAITE, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
PRIVATE MICHELLE BERKOWITZ, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
DISTRICT OF COLUMBIA
Metropolitan Police Force
l350 Pennsylvania Ave. NW
Washington, DC
Captain MICHAEL CANFIELD
D.C. Metropolitan Police
500 Indiana Ave. NW,
Washington, D.C.
* Texas v. Johnson, 491 U.S. 397 (1989) ................................................
5, 44, 57
Thornbill v. Alabama, 310 U.S. 88 (1940) .............................................. 5
Thomas v. Review Board, 450 U.S. 707 (1981) ........................................ 58
Tinker v. Des Moines, 393 U.S. 503 ..................................................... 5
United States v. Abney, 534 F.2d 984 ................................................... 35
* United States v. Eichman, 58 LW 4745 (1990) ...................................... 5
United States v. Grace, 461 U.S. 177 .................................................... 5, 44
United States v. Musser, 873 F.2d 1513 ................................................ 7, 33, 34
United States v. Nixon, 418 U.S. 683 .................................................... 27
United States v. O'Brien, 391 U.S. 368 (1969) ........................................ 5
Walker v. Washington, 627 F.2d 541 (D.C. Cir.), cert denied,
449 U.S. 994 (1980) ..........................................................................
5
Ward v. Connor, 657 F.2d 45, cert. denied, 455 U.S. 907 ......................... 50
Ward v. Rock Against Racism, 490 U.S. 781, 790 (1989) .......................... 44
Warner v. Louisiana, 368 U.S. 157 (1961) ............................................. 35
Watson v. Memphis, 373 U.S. 526 (1962) .............................................. 34
* Westmoreland v. CBS, 770 F.2d 1168 ................................................ 52, 53, 54
White House Vigil for ERA v. Clark,
746 F.2d 1518 ....................................................
7, 18, 19, 20, 28, 29, 33, 44, 47
White Motor Co. v. United States, 372 U.S. 253 (1953) ............................ 32
* Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................. 58
Wood v. Strickland, 420 U.S. 308 ........................................................ 31
Wright v. Georgia, 373 U.S. 284 ......................................................... 35
I. STATEMENT OF THE CASE
Petitioners take literally the biblical teaching, "Blessed
are the peacemakers, for they shall be called the children of
God." Mt. 5: 9. Compelled by their religious convictions,
since 1981 petitioners have attempted to maintain a continuous
presence in Lafayette Park in order to present their beliefs to
the public and to the Government. Because of their indigency,
the communications media available to petitioners are limited
to signs, literature and their persons. Through their personal
presence across the street from the President's residence, in
what is probably the premier public forum in the world, petitioners
have publicly communicated a message of "Peace through Reason,"
and "Peace through Love."
Respondents do not contend that petitioners have engaged
in unsuitable or harmful activity in Lafayette Park, nor do they
deny that all respondents promote or implement a policy of "Peace
through Strength," a policy at odds with "Peace through
Reason."
However, respondents have pursued an "ongoing conflict"
-- against what they termed the "Thomas Vigil" -- executed
under color of various Interior Department and District of Columbia
regulations, with the object of disrupting petitioners' constitutional
and statutory rights. The promulgation of two Interior Department
regulations is also at issue.
Petitioners claim that respondents' "ongoing conflict"
is actually a conspiracy intended to disrupt or suppress the petitioners'
constitutionally protected expressive activities.
Petitioners have documented numerous undisputed incidents in
which various
In 1983, then-Secretary of Interior, James Watt, issued a
memo announcing his "intention to prohibit protests and demonstrations"
in Lafayette Park, and discussed his intention with Respondent
Robbins.
To further this scheme respondents, under the supervision of
Mr. Robbins, arrested and prosecuted Petitioner William Thomas
under color of a District of Columbia regulation, and distributed
false information to public news media to further these efforts.
Soon after, respondents promulgated the "White House Sidewalk"
regulation. To validate this regulation, respondents presented
false testimony and evidence to the Federal Courts.
Then, in 1986, respondents promulgated the "Lafayette Park"
regulation, which they knew to be an unnecessary restriction on
expressive activity. The "factual basis" for this regulation
was a 1700-odd-page "Administrative Record," which petitioners
alleged to be a gross misrepresentation of fact, but which has
never been subjected to a factfinding process.
Respondents also arrested and prosecuted Petitioner Picciotto
under color of "Additional Permit Conditions." United
States v. Picciotto, 875 F.2d 345 (1989).
In 1991 Respondent Robbins, in concert with others, repeatedly
arrested Petitioner Thomas, and others, for the purpose of silencing
expression critical of Respondent Bush's Persian Gulf War. United
State v. Doe, 968 F.2d 86 (1992).
Finally, in 1991, respondents published an unnecessary "Three
Cubic Foot" rulemaking, ultimately promulgated in 1992, again
supported by an Administrative
Record which was a gross misrepresentation of fact that evaded
evidentiary review.
It is undisputed that as a direct and proximate result of this
ongoing conflict petitioners have repeatedly been arrested, assaulted,
imprisoned, suffered delay of presentment to the courts, had signs,
literature, and other expressive articles seized and/or destroyed,
and had their expressive activities disrupted and suppressed.
Petitioners sought declaratory relief stating that their rights
under the First, Fourth, Fifth, Ninth and Fourteenth Amendments
to the Constitution of the United States had been violated by
respondents, or their agents, as a result of respondents' efforts
to interfere with communicative activities between petitioners
and members of the news media and general public; injunctive relief,
to enjoin the seizure of petitioner's lawful signs, literature
and communications materials; and to establish specific guidelines
to distinguish lawful "sleeping" from unlawful "camping,"
as well as punitive and compensatory damages. See, Proposed Order,
Appendix hereto ("App"), ps. 33-35.
On two separate occasions during this lengthy litigation, petitioners
also sought Rule 11 sanctions against respondents' counsel, the
United States Attorney for the District of Columbia.
The District Court also twice granted preliminary relief, yet
on May 24, 1991, dismissed the Complaint, holding "plaintiffs
are not entitled to the relief they seek." Dismissal Order
("Huddle Memo"), ps. 3, 4. See App. ps. 4-28.
The Circuit Court granted Summary Affirmance for the reasons
"stated by the district court in its Memorandum Opinion May
24, 1991," asserting "nothing in the record suggests
that the District Court abused its discretion in refusing to conduct
a hearing on appellants' motions for sanctions." App. ps.
1, 2.
Petitioners now apply for a Writ of Certiorari, requiring the
Circuit Court for the District of Columbia to produce a certified
copy of USDC Appeal No. 91-5304 ("Record") so this Court
may inspect the proceedings and determine whether the irregularities
set forth in the following discussion require that the instant
Complaint be remanded for discovery and trial.
II. DISCUSSION
The Circuit Court may only grant summary affirmance when
"the positions of the parties are so clear as to justify
summary action." See Taxpayers Watchdog v. Stanley, 819
F.2d 294, 297 (D.C. Cir. 1987); Walker v. Washington, 627 F.2d
541, 545 (D.C. Cir.), cert denied, 449 U.S. 994 (1980).
It is clear, as the District Court noted, that "plaintiffs
and law enforcement officials have engaged in an (eleven year)
ongoing conflict arising from plaintiffs' exercise of their
First Amendment rights." Huddle Memo, pg. 3 (parentheses
added).
As indicated by the discussion which follows, respondents' position
is not so clear as to merit summary action.
A. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY AFFIRMANCE
The gravamen of the complaint is respondents' suppression
of petitioners' free exercise of thought and expression. Record,
Supplemental Complaint, March 21, 1991 (Docket # 96 [hereinafter
"S. CMPLT"]), Count Thirty.
circumstances surrounding petitioners' claims, and 2) awarded
extremely favorable inferences to respondents, against both the
evidence and sound advice, crucial to any free society:
"(C)ourts must be especially careful in scrutinizing (time,
place, and manner) restrictions on first amendment expression
that the government seeks to justify on eye-pleasing grounds....
Because of their subjective nature, aesthetic concerns are easily
manipulated, and not generally susceptible of objective proof.
The danger is not just ... that government might adopt an aesthetic
rationale as a pretext for an impermissible motive, but rather
that so many forms of robust expression are by their very nature
boisterous, untidy, unsightly, and downright unpleasant for unsympathetic
viewers. Distaste for the vigor with which a message is asserted
can too easily be cast as an aesthetic interest in compelling
others to be more moderate and decorous - and, in consequence,
less effective - in conveying their message." White House
Vigil for the ERA v. Clark, 746 F.2d 1518, 1551; City Council
v. Taxpayers for Vincent, 103 S. Ct. 2118, majority opinion, 2139,
2141, see also, Clark v. CCNV, 468 U.S. 288 ("Clark"),
dissenting Opinion at 315.
Second, the District Court seems to have confused stare decisis
with res judicata
and, subsequently, relied on a legal theory -- posited on an interpretation
of Clark; White House Vigil; United States v. Musser, 873 F.2d
1513; Thomas I and Thomas II. The first Thomas case (identified
in Huddle Memo, p. 4 as "Thomas II," as distinguished
from "Thomas I," the later Thomas v. News World Communications,
681 F. Supp. 55) was filed in October, 1984. The Court's theory
mistakenly presupposes respondents' good faith, and also erroneously
requires that the factual allegations petitioners now raise must
yield to the unexamined assertions of respondents'
demonstrably inaccurate pleadings.
Petitioners documented numerous abuses involving respondents'
joint enforcement of these and other regulations.
"(C)onstitutional rights of free speech and the right to
peaceful demonstration are involved.... (M)aterial facts are
in dispute involving whether supervisory officials and officers
acted in bad faith, either in a conspiracy or by combined action,
to deprive plaintiff of his First Amendment rights." Memorandum,
Magistrate Burnett, January 13, 1987 ("Mag. Memo,")
pg. 6. Record, Plaintiffs' January 17, 1988 filings ("Docket
# 45"), Appendix thereto ("Exhibit") 3; cf. Thomas
v. United States, 696 F. Supp. 702, 706 ("Thomas II").
App. p. 41.
"Magistrate Burnett personally presided over the depositions
of ten government officials." Huddle Memo, pg. 5. The
District Court saw "no reason to reject the findings of that
Magistrate" (id. 22), yet, inexplicably, disregarded the
essence of the Magistrate's informed conclusions:
"There exist sufficient troublesome incidents raising genuine
issues of material facts in dispute in this case, which mandate
proceeding to trial on plaintiff's causes of action for both injunctive
and declaratory relief." Magistrate's Memo, p. 14, App.
p. 49.
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, 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 dispatched 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. Infra,
ps. 38-40.
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.
In fact, 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,
"It is undisputed that plaintiffs have been repeatedly warned,
cited, arrested, tried, and sometimes convicted for violating
these regulations." Huddle, Memo pg. 4.
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
"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 ...
communication.
Petitioners pressed for an evidentiary hearing, but the District
Court left important questions unresolved:
"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.
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.
It is a vigil that was described in the testimony of the government
witnesses as, quote, the Thomas Vigil, end quote." Transcript,
United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 85-255,
ps. 1014, 1015, September 25, 1985 [brackets substituting]. App.
ps. 134, 135.
The camping regulation was ostensibly intended to address
the specific of "demonstrators ... sleep(ing) in tents."
Clark v. CCNV, 468 U.S. 288. Respondents agreed that "overnight
sleeping in connection with the demonstration is expressive conduct."
Id. 299. Earlier, in the Circuit Court, respondents had stated
a specific distinction between the "protected" and the
"criminal."
"According to the Park Service's interpretation of the new
regulations, one's participation in a demonstration as a sleeper
becomes impermissible 'camping' when it is done within any temporary
structure erected as part of the demonstration." CCNV v.
Watt, 703 F.2d 589.
Despite those representations to the court, on June 17, 1981
Respondent Robbins, in concert with others, suspended the delay
of effectiveness (Fed. Reg., June 4, 1982, Vol. 47, No. 108, p.
24302) required by 5 USC 553(d), and enforced the regulation,
without probable cause, against Petitioner Picciotto -- who had
neither tents nor shelter, or structures, and who wasn't even
sleeping. Record, Docket # 11, para. 13.
The "camping" regulation "furnished a convenient
tool for harsh, discriminatory enforcement" (infra, ps. 23,
35, 36-37, 57-60) and the "unrestrained power to arrest and
charge persons with a violation." Thomas II at 709, citing
Kollander v. Lawson, 461 U.S. 352, 360 (1982). But, as the Record
suggests, not harsh enough to fully satisfy respondents' desire
to suppress petitioners' expression.
After the "camping" regulation and their concerted
efforts under color of D.C. regulations failed to dislodge petitioners
from Lafayette Park, respondents began
fashioning another regulatory scheme in pursuit of the same objective,
strengthening the logical inference that in respondents' minds
they were pursuing an ongoing plan.
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.
"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.
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. 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:
"two individuals who have in the past and are presently
maintaining a daily demonstration in front of the White House."
Id.
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":
"(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.
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
"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. 178.
Although it is settled that "(o)ne is not to have the exercise
of his liberty of
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 regulation (infra, A MEETING
OF MINDS IN FURTHERANCE OF THE MAIN CONSPIRACY, p. 32-34) without
any direct judicial inquiry.
The "Thomas Vigil" endured, so respondents continued
their concerted attack on the "Current Situation in Lafayette
Park,"
"(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.
The Federal Register publication of October 4, 1990 was also
at issue in this Complaint. Infra, p. 42-43,
"[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).
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."
c) FACTUAL ISSUES IN DISPUTE PRECLUDE DISMISSAL
To state a claim under 42 USC Section 1985(3), petitioners need
only allege:
"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
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. 10) is impossible -- it was
pointed out that germaine questions escaped review even in cases
that resulted in convictions.
""(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.
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."
"(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.
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.
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,
"(b)y creating an atmosphere in which individuals would be
deprived of the protection of the most Fundamental Laws of the
United States of America (i.e., 1st, 4th, 5th, 9th and 14th Amendments);
42 USC 1983, 1985(3)(4), and 1986; and the Administrative Procedures
Act, 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 .
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,
"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.
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
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, 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, and notwithstanding the District Court's opinion
(infra, ps 37-41), 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,
iii) A MEETING OF MINDS TO ILLUSTRATE THE "ONGOING CONFLICT"
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.
on March 11, 1983. 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 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.
iv) A MEETING OF MINDS IN FURTHERANCE OF THE MAIN CONSPIRACY
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. ps. 178, 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. Mr. Robbins wrote in a letter:
"the 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. 115-117.
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.
v) 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.
"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
which allowed a continuous presence -- including sleeping and
possession of certain property. See, Thomas II, 712-716; United
States v. Abney, 534 F.2d 984.
The complaint does not challenge the constitutionality of the
"camping"
regulation. Rather it addresses the pattern of enforcement.
"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. 57, IMPORTANCE
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 is distinguished
from illegitimate camping, petitioners will continue to be subjected
to arrests which serve no legitimate purpose, but seriously disrupt
their protected activities.
2. THE DISTRICT COURT ERRED IN FAILING TO VIEW THE RECORD IN
A LIGHT MOST FAVORABLE TO PETITIONERS
"The Plaintiff is entitled to all favorable inferences which
may be drawn from [the] allegations. Scheuer v. Rhodes, 416 U.S.
232, 236." Huddle, Memo, pg. 7.
Petitioners submit that the District Court violated this
axiom in assessing the pleadings of this case, and that the
Court's departure from this standard is reflected in its assessment
of the videotape. See also, infra, ps. 41-50, THE LOWER COURTS
ERRED IN FAILING TO CONSIDER THE COMPLAINT CAREFULLY.
"(W)hat the Government is suggesting is that the Court
should not hear our allegations on the basis of law. And I'm
saying that there are facts here that have never been established.
And it seems to me that the Government's legal arguments fail
on that basis....
"I think that reason and logic and truth and all of the
things that I believe the framers of the Constitution were pushing
for strongly suggest that the Court should listen to all the facts
in this case." App. ps. 99, 100.
a) Who is Telling the Truth?
Defendant's Exhibit 4 stands on the threshold of the veracity
question, and, petitioners submit, it is not only a strong indication
of who is telling the truth, but also that the District Court
exercised undue prejudice, most unfavorable to petitioners, in
assessing respondents' pleadings.
Exhibit 4, appended to Federal Defendants' Motion to Dismiss
(Docket # 34), was entitled "Arrests of William Thomas"
(supra, p. 10), and purported that Thomas was arrested "at
least 25 times, and convicted at least 14 times." Magistrate
Burnett, on the other hand, noted that by Thomas' "reckoning
only seven arrests resulted in conviction." App. p. 38, ftn.
3.
On January 3, 1989, petitioners filed a Motion to Strike Exhibit
4 (Docket #36). Petitioners' grounds were that Exhibit 4 would
not further "the end that truth may be ascertained (Fed.
R. 102)," that it would "confuse the issues (Fed. R.
403)," that it could not be authenticated (Fed R. 803 and
902), and that it was factually incorrect. Fed. R. 104(b).
That motion was finally granted. Huddle Memo, p. 4, ftn. 4.
Paradoxically, in dismissing this case the District Court
still relies on the vague notation that "plaintiffs have
... been arrested and sometimes convicted." Id. ps. 3, 4.
b) Chronological Precision or Judicial Precision?
The District Court writes, "the videotape exhibit ... does
not proceed chronologically." Huddle Memo, p. 13.
Without even viewing the videotape the chronology can be ascertained
from the cross-referenced Video Index. App. ps. 228-232.
In fact there can be no question that 1) the tape is divided
into three distinct segments ("Sign seizures," 000.00-022.29;
"Violence," 022.30-044.57; and "Camping,"
044.58-119.03), and 2) each segment of the tape is chronologically
ordered within that segment. The "Sign Seizure" and
"Violence" segment proceed in nearly precise chronological
order. The "Camping" segment does contain two slight,
but factually insubstantial, departures -- interposed for heightened
clarity -- from perfect chronological order (057.14-58.25 and
105.50-106.25). To establish this fact, one need only view the
videotape.
With the question of factual accuracy so plainly defined the
District Court erred in not holding a hearing to determine who
was not telling the truth.
c) Victims or Victimizers?
"As is apparent from the videotape ... plaintiffs are
shown resisting arrest. [And] ... were not complying with the
regulation that prohibits camping." Huddle Memo, 18.
The simple facts are that throughout the period documented
on the videotape, a) none of the petitioners was convicted of
violating any regulation, b) none of the petitioners was even
accused of resisting arrest, and c) with the exception of the
disputed arrests of Love and Galindez -- who were not convicted
-- none of the petitioners was even charged with "camping."
For the court to have leapt to the conclusion that petitioners
were "resisting arrest," and "not complying with
the camping regulation," when there is absolutely no evidence
of such violations outside of the court's interpretation of the
tape, was quite unfavorable to petitioners. Again, Magistrate
Burnett had the most accurate perception.
"It is not for the (court) at this stage to determine
credibility as to where the truth lies. It is sufficient to conclude
that appellate precedent requires a trial because there are material
issues of fact in dispute." App. p. 52. 7, p. 17.
d) Who Goaded Whom?
It seemed to the District Court as if "plaintiffs"
had "goaded the police." Huddle Memo, pg. 13. But
the court memorialized no specific basis for its speculation.
Perhaps the District Court thought petitioners were "goading"
when they pressed for clarification between a "vigil"
and "camping." Sgt. Rule said, "We're not going
to argue that here, we'll argue it in court." Video @ 45.l7.
As the Record shows, although they should have been, these issues
never were argued in court, as Sgt. Rule promised.
Petitioners assert that a jury viewing the tape and weighing
the testimony and demeanor of witnesses might well conclude that
plaintiffs "goaded" defendants as mice might "goad"
cats.
At the same time, "although plaintiffs may have documented
.. instances of seeming misconduct ... the Court cannot discern
what prompted the defendants' response." Huddle Memo, pg.
14.
a) THE LOWER COURTS ERRED IN FAILING TO ADDRESS
PETITIONERS' ALLEGATIONS WITH RESPECT TO 42 USC SECTION 1985(4)
Neither the lower courts nor respondents made the slightest reference
to the groundless arrests of petitioners Picciotto and William
Thomas, the seizure of their signs and literature, and the resulting
disruption of their expressive activities on February 2 and 3,
1991. S. CMPLT, COUNT TWO, paras. 5 & 28.
Nor does the Record contain any reference to the concurrent interference
with petitioners' right to promote Proposition One voter initiative
for nuclear disarmament and economic conversion and its local
version, D.C. Election Board-approved D.C. Initiative 32, in violation
of 42 USC 1985(4).
b) THE LOWER COURTS ERRED IN FAILING TO ADDRESS
PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS'
PUBLICATION OF RN 1024-AB93 IN THE FEDERAL REGISTER
Petitioners alleged that, to further a conspiracy intended
to "place administrative policy above the law," acting
in concert with various identifiable superior and subordinate
government agents, Respondent Robbins "entered false or grossly
exaggerated information in the Federal Register, October 4, 1990,
Vol. 55 No. 193 ps. 40879-40881 in violation of the APA, 42 USC
1983, 1985(3)(4), and 1986." S. CMPLT. Count Thirty-Three.
Allegedly this proposed rulemaking was "unnecessary, unreasonable,"
and intended to subject petitioners to deprivation of "their
freedoms of religion, communication, and association." Id.
The District Court ignored this allegation.
Respondents did not reference these allegations until their
Motion for Summary Affirmance in the Circuit Court:
"With respect to the publication of RN 1024-AB93
... (a)ppellees' counsel can locate no such publication, (and
does) not know to what appellants are referring." Appellees'
Motion, pg. 15, n. 15.
Petitioners explained to the Circuit Court that they were referring
to the allegations summarized at S. CMPLT. Count Thirty-Three.
For clarity, petitioners appended a copy of RN 1024-AB93 to their
pleadings. Opposition to the Motion for Summary Affirmance at
Exhibit 5.
While it may be puzzling to think that respondents' counsel
could "locate no such publication," it seems incredible
that the District Court granted respondents' motion to dismiss
even though respondents offered no explanation on this crucial
issue, which obviously implicated petitioners as respondents'
objective,
"the National Park Service stopped imposing (an improper)
rule when the United States Court of Appeals for the District
of Columbia Circuit reversed the criminal conviction against a
defendant charged with a violation of the rule.... United States
v. Picciotto, 875 F.2d 345." Federal Register Vol. 55 No.
193, October 4, 1990, pg. 40680 (RN 1024-AB93)
(parentheses interposed from Picciotto).
c) THE LOWER COURTS ERRED IN FAILING TO ADDRESS
PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS'
APPLICATION OF 36 C.F.R 2.12
Similarly, the District Court remained entirely mute on
appellant's claims involving the enforcement of 36 C.F.R. 2.12.
S. CMPLT. Count 17, paras. 13, 15, l8, l9, 20, 24, 30, 31, 32,
33, 40, 41, 42, 44, 54, 60, 61, 87. Supra, p. 37, 39-41.
A perplexing, very disturbing, aspect of the courts' disposition
of the 36 CFR 2.12 issue is that it appears to fly in the face
of law and reason as articulated in Doe, supra.
"(Doe) challenge(d) the constitutionality of (36 C.F.R. 2.12) on the ground that it impermissibly restricts ... First Amendment rights to engage in expressive conduct in a public forum." Doe, 968 F.2d at 87.
The Circuit Court concluded:
"There can be no question that beating a drum in the context
of a clearly identified anti-war demonstration is expressive conduct
protected by the First Amendment. See, e.g., Ward v. Rock Against
Racism, 490 U.S. 781, 790 (1989); Texas v. Johnson, 491 U.S. 397
(1989). We are additionally spared the need for any extended
'forum analysis' in this case, as no one disputes that Lafayette
Park is a 'quintessential public forum,' see White House Vigil
for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly, 'the
government's ability to permissibly restrict expressive conduct
[there] is very limited.' United States v. Grace, 461 U.S. 171,
177; see Hague v. CIO, 307 U.S. 496, 515-16." Doe, 88.,
supra, p. 26.
Given that Doe specifically addressed 36 C.F.R. 2.12, and
specifically concerned an incident also specifically at issue
in this Complaint (S. CMPLT. para. 19), it is indeed difficult
to imagine what circumstances might justify failing to apply the
principles stated in Doe to the facts of the instant case.
Again, respondents made no reference to the matter until
their pleadings in the Circuit Court, where they simply claimed
to be "unaware of any allegations relating to
acting under color of federal law." Huddle Memo, pg. 15.
However, that opinion also fails to consider the different
occasions respondents disrupted petitioners' constitutionally
protected activities under color of the D.C. disorderly conduct
statute. Hobson v. Wilson, 737 F.2d 1, , 737 F.2d 17, n. 49.
"(A) police officer forcibly took a poster from a young woman
peacefully standing on a public sidewalk and destroyed it. Although
not every encounter between a citizen and a policeman warrants
extended judicial scrutiny and review, the implications of this
apparently inconsequential incident raise important questions
about the constitutional guaranty of freedom of expression, and
require us to determine the circumstances in which police officers
may be required to respond in damages in an action brought (under)
42 USC Sections 1983 and 1985(3)..." Glasson v. Louisville,
518 F.2d at 901, cert denied, 423 U.S. 930.
Perhaps the District Court, relying on Thomas I at 67, now holds that conspiracies to subvert constitutional provisions are permissible provided they occur "'under color of' federal regulations." Petitioners hope this opinion is incorrect. In any case, the court apparently overlooked the fact that this action was also brought under the principles articulated in Bivens v. Six Unknown Named Agents, 403 U.S. 388:
"An agent acting - albeit unconstitutionally - in the name of the United States possess a far greater capacity for harm than an individual trespasser.... (cites omitted) '(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S. at 684." Id. 392.
e) THE LOWER COURTS ERRED IN FAILING TO ADDRESS
PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS'
FALSE TESTIMONY AND PUBLICATIONS
Another of petitioners' key allegations, unmentioned in the disposition
of this case, is that respondents have
"organized and participated in a complex and far-reaching
plan -- which included false testimony in federal courts and fabricated
documentation in federal publications -- to falsely portray plaintiffs'
exercise of constitutional rights as criminal behavior, under
color of the regulations, in violation of the constitutional safeguards
provided for in the Administrative Procedure Act, 5 USC 552 et.
seq., and plaintiffs' Fifth Amendment rights." Record, e.g.,
S. COMPLT, Count 26, see also Counts 27, 33, and Docket # 1, para.
20.
Petitioners clarified this point in oral argument.
"In this case, we are alleging that two of the specific
regulations were pushed through the regulatory process with the
assistance of false testimony and evidence on the part of some
of these defendants." App. p. 266, Transcript, December
5, 1988, p. 24.
While the lower courts have apparently overlooked some of the
Government's "incredible" testimony (App. p. 161, J.
Bryant), there is ample evidence to support a claim that respondents
and their agents have not told the truth, and nothing but the
truth, when they went to court. E.g.:
"The testimony offered by way of explaining the police conduct is absolutely unworthy of belief" (App. p. 160),
and "(the Deputy Chief of the Park Police and Director
of the Secret Service, Executive Protection Branch) testimony
that a large sign had been used by an individual to scale the
White House fence fell apart at the trial. There was no evidence
that any sign belonging to the plaintiffs or anybody else had
ever been used to scale the fence." App. p. 170 (added).
Nor did dubious testimony by Government agents end with White
House Vigil.
"Officer Haynes, the Government's ... primary witness ... (who) spoke with precision and exactitude and painstaking care, had selective memory ... (was) unable to remember even testimony that he had clearly specifically given in court hours earlier, failed to remember making, on some occasions, earlier arrests of the (petitioners, and) contradicted representations of the manner in which he inventoried the property...." United States v. Thomas, Thomas, Thomas, supra; App. ps. 145, 146 (parentheses added), compare, CoC, paras. 90-109.
It was further alleged that respondents made "false statements
to the press for the purpose of maligning" petitioners, and
justifying their unnecessary regulations. E.g. Record Docket
# 1, para. 86. Well-documented (e.g., Record, Docket # 45, e.g.,
Exhibits 64-A thru D), and briefed (e.g., CoC paras. 64, 79, 80,
110).
Nothing in either the courts' or respondents' papers refutes
these allegations.
f) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS'
CLAIMS UNDER THE FIFTH AMENDMENT
From the onset of this litigation petitioners contended that
several incidents of intentional delay in presenting petitioners
to a magistrate after arrest, thus resulting in several days of
incarceration, violated petitioners' rights under the Fifth Amendment.
Complaint (Docket # 1), para. 54, Amended Complaint (Docket #
11), para. 50, Clarification of Complaint (Docket # 45) paras.
90, 92, 108.
Instead of explaining why respondents have not targeted petitioners
with a pattern and practice of surveillance, threats, seizures,
arrests, unnecessary force, and violence, directly resulting in
deprivation of petitioners' Fifth Amendment right to remain in
a public park unmolested by police abuse, the court reasoned,
"Plaintiffs may have documented ... instances of seeming
misconduct." Huddle Memo, p. 13.
"(Therefore) plaintiffs are surely free to challenge their
arrests in the proceedings in which they are defendants."
Id. p. 21, ftn. 17 (parentheses added).
There are two problems with this reasoning. First, as mentioned
above, petitioners do not enjoy litigation. Second, as a general
rule we have seen respondents drop their baseless criminal charges
(supra, e.g., ps. 15 and 24-26; App. ps. 179, 180, 240-242); thus
their authoritarian abuses usually evade any judicial review.
g) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS'
CLAIMS UNDER THE NINTH AMENDMENT
In Buckley v. Veleo, 424 U.S. 1, the Court discussed "quantity
and quality," and required "exacting scrutiny"
to balance equality of speech for wealthy and poor. Here the
"quality" of petitioners' expressive "continuous
presence" depends on the "quantity" of petitioners'
"continuity" in the "public forum."
"(U)se of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties
of citizens." Hague v. CIO, 307 U.S. 496, 515-516.
Although the right to remain in a public park without being harassed,
intimidated, arrested and assaulted by law enforcement personnel
may not specifically be enumerated in the Constitution, for the
sake of civilized society, it must be recognized as a right inherently
"retained" by the people.
4. THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS
FAILED TO ALLEGE DISCRIMINATORY ANIMUS
The District Court erroneously held, "plaintiffs have ...
failed to demonstrate federal defendants' discriminatory animus"
(Huddle Memo pg. 11), yet correctly observed that petitioners,
"(c)ompelled by their religious and political convictions
... have sought to urge the general public ... and the President
himself ... to strive towards ... 'Peace Through Understanding,'
'Peace Through Reason,' and 'Peace Through Love'." Id. ps.
3 & 4.
There is little question that "Section 1985(3) extended
to purely political animus to reach conspiracies formed because
a person 'was a Democrat, if you please, or because he was a Catholic,
or because he was a Methodist or because he was a Vermonter (quoting
Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of
Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson,
supra, at 16, n. 44.
"(S)everal circuits have ruled that politics and religion
define such [class-based discriminatory animus that section 1985(3)
requires]. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88
(discrimination on basis of political affiliation constitutes
class-based discriminatory animus); Ward v. Connor, 657 F.2d 45,
47-48 (discrimination against members of Unification Church),
cert denied, 455 U.S. 907; Hampton v. Hanrahan, 600 F.2d 600,
623 & n. 20 (discrimination based on political affiliation
with racial overtones) modified on other grounds, 446 U.S. 754;
Means v. Wilson, 522 F.2d 833, 839-40 (discrimination against
supporters of insurgent candidate for tribal council presidency),
cert denied, 424 U.S. 958; Glasson v. City of Louisville, 518
F.2d 899, 911-12 (discrimination against critics of the President),
cert denied, 423 U.S. 930; Marlowe v. Fisher Body, 489 F.2d 1057,
1064-65 (discrimination against Jews); Action v. Gannon, 450 F.2d
1227, 1232 en banc (worshippers at predominantly White parish
disrupted by Black civil rights workers); see also comment, Private
Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728
(1977) ('[T]he legislative history behind section 1985(3) unmistakably
LEADS to the conclusion that discrimination [on the basis of political
affiliations or beliefs] was intended to be actionable.')."
Hobson at 21 (parentheses in original).
It is undisputed that, as President and commander-in-chief of
the police/armed forces respondent Bush, following the lead of
his predecessor Ronald Reagan (Huddle Memo, p. 2, ftn. 1), promoted
the concept of "Peace through Strength," in diametric
opposition to the concept of "Peace through Reason"
promoted by petitioners. S. CMPLT para. 71. This plain fact would
make it easy for a jury to infer that respondents were animated
by a desire to suppress public opposition to the Chief's policy
of "Peace through Strength."
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 -- 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 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:
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.
293.
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." App. 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