No. 92-6732

MARY HUDDLE, et. al.,





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








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

Petitioners - Appellants - Plaintiffs

P.O. BOX 27217

P.O. Box 4951
Washington, DC 20009

2817 11th Street, N.W.
Washington, D.C. 20001

2817 11th Street, N.W.
Washington, D.C. 20001

P.O. BOX 27217

P.O. BOX 27217

P.O. BOX 27217

2817 11th Street, N.W.
Washington, D.C. 20001

Respondents - Appellees - Defendants

1600 Pennsylvania Avenue, N.W.
Washington, D.C.
1100 Ohio Dr. S.W.
Washington, D.C.

1100 Ohio Drive, S.W.
Washington, D.C.,

1100 Ohio Drive, S.W.
Washington, D.C.

1100 Ohio Dr. S.W.
Washington, D.C.

1100 Ohio Dr. S.W.
Washington, D.C.

1100 Ohio Dr. S.W.
Washington, D.C.

1100 Ohio Dr. S.W.
Washington, D.C.

1100 Ohio Drive, S.W.
Washington, D.C.

1100 Ohio Drive, S.W.
Washington, D.C.

1100 Ohio Drive, S.W.
Washington, D.C.

Metropolitan Police Force
l350 Pennsylvania Ave. NW
Washington, DC

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

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.
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.
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 ...
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."
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.

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,
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.
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.
"(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.
"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.
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).

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).

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.





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.
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.
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.
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