SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
WILLIAM THOMAS, et. al., Petitioner, v. RONALD REAGAN, et. al., Respondents
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
PETITIONERS' REPLY TO
FEDERAL RESPONDENTS' BRIEF IN OPPOSITION
2817 11th Street N.W.
Washington, D.C. 20009
|Brotherhood of Carpenters and Joiners v. Scott, 103 S.Ct. 3360||7|
|*Conley v. Gibson, 355 U.S. 41, 45-46 (1957)||2, 3, 6|
|Crisafi v. Holland, 655 F.2d 1305, 1310 (D.C.Cir)||6|
|*Glasson v. City of Louisville, 518 F.2d 899, cert. denied, 423 U.S 930||8|
|Griffin v. Breckenridge, 403 U.S. 86||7|
|*Hobson v. Wilson, 737 F.2d 1 (D.C. Cir 1984)||7|
|In re Pope, 580 F.2d 620, 623 (D.C. Cir 1978)||4|
|In re Scott 709 F.2d 717, 718 (D.C. Cir 1983)||4|
|Indianapolis Colts v. Mayor & City Council, 775 F. 2d 177 (7th Cir. 1985)||8, 9|
|*Leatherman v. Tarrant County, 113 S. Ct 1160, 1162 (1993)||3, 4|
|*Marbury v. Madison, 1 Cranch 149, 161 (1803)||2, 3|
|Martin v. Malhoyt, 830 F.2d 237, 257 (D.C.Cir 1987)||4|
|Norris v. Slothouber, 718 F.2d 1116 (D.C. Cir 1983)||4|
|*Ramirez de Arrellano v. Weinbergher, 745 F.2d 1500 (D.C. Cir 1984)||5, 6, 9|
|Redwood v. D.C, 679 F.2d 931, 934 (1982)||4|
|*Reuber v. United States, 750 F.2d 1039 (1984)||6|
|Richland v. Harper, 302 F.2d 324, 326 (5th Cir. 1962)||5|
|*Sills v. Bureau of Prisons, 761 F.2d 792 at 794 (1985)||4, 10|
|*Taxpayers v. Stanley, 819 F.2d 294 (D.C. Cir 1987)||10|
|Thonas et. al. v. United States. et. al., USCE 84-3552||3|
|Thomas, et. al. v. News World Communications, et. al., 681 F. Supp. 55||9|
|*United States v. Gaubert, 111 S.Ct. 1267 (1991)||2, 3, 5, 10|
|*United States v. Doe aka Diana Nomad, 968 F.2d 86, 91 (1992)||4|
|*Westmoreland v. CBS, 770 f.2D 1168 (D.C. Cir. 1984)||9|
|Federal Register, RN 1024-AB93, Vol. 55, No. 193, October 4, 1990||2|
|Federal Rules of Civil Procedure, Rule 11||8|
|Federal Rules of Civil Procedure, Rule 8(a)(2)||4|
|Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977)||7|
On February 23, 1993 the Court requested respondents to file a response to the Petition for Certiorari ("Pet"). On April 22, 1993 respondents filed a Brief in Opposition ("Brief").
"Compelled by their religious and political convictions," for over ten years, in a public forum, petitioner sought to convey a message of "Peace through Reason." Petition, Appendix ("Pet. App.") 7. 1/ The complaint in this action sought relief from "an ongoing conflict arising from plaintiffs' exercise of their First Amendment Rights." Id.
Before discovery or any evidentiary hearing the district court dismissed the complaint. Pet. App. 4-28.
Respondents' Brief restates the district court's findings, notes the court of appeals summary affirmance, but inaccurately presumes that petitioner seeks review of a "narrow, fact-bound issue" (Brief 4), and that the lower courts' decisions do "not conflict with decisions of other courts." Id. Respondents merely reiterate the Questions Presented. Pet. pg. i.
For the Court's convenience the following discussion attempts to focus the issues more accurately.
Axiomatically, a claim cannot be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts
1/ NOTE, In referring to the district court's opinion, respondents appear to use the numbers at the bottom center of the page. However, the Appendix (of 45 "Exhibits") is sequentially numbered in the upper right hand corner of each page (Pet. pg. xiii). Herein "Pet. App." cites the upper right page numbers.
in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46" Pet. App. 11.
The most serious problem in this case is that the lower courts, perhaps confusing stare decisis with res judicata (Pet. 7), apparently overlooked a profusion of factual allegations. 2/ This oversight is in conflict not only with bedrock decisions of other courts, but also with the nature of the judicial system.
"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 v. Madison, 1 Cranch 149, 161 (1803).
Despite both the district courts' specific reference to the March 21, 1991 "Complaint" (Pet. App. pg. 10, n. 6), and respondents' assertion that "the district court carefully examined each of petitioner's claims" (Brief 2), there is absolutely nothing in the record to indicate that the district court gave any consideration to many of petitioner's claims.
Perhaps the most obvious unexamined claims are those in which -- prior to conducting any evidentiary hearing -- the district court granted preliminary relief against "interference with (petitioner's) communicative activities." Pet. 12-14.
With so many unexamined claims it cannot reasonably be said that "no set of facts ... would entitle (petitioner) to relief,"
2/ A few "fact bound issues" (Brief 4) instances which merit this court's consideration include the lower courts' failure to address petitioner's allegations regarding  42 USC Section 1985(4) (Pet. 42),  respondents' publication of RN 1024-AB93 in the Federal Register (i),  responents' application of various istrict of Columbia statutes (id. 45),  respondents' false testiony and publications (id. 47), and 5) the Fifth and Ninth Aendments (id. 48, 49).
Thus, the lower court opinions conflict with Marbury and Conley.
With all due respect, to say that petitioner's pattern and practice claim was "carefully considered" seems absurd. Brief 2. The district court held, "(e)ach plaintiff points to a single instance - his or her own arrest - as illustrative of the alleged unlawful pattern." Pet. App. 24. Not only does this opinion fly in the face of the complaint (e.g., Pet. 15), but it also conflicts with the opinion of another court which, after hearing the depositions of ten government witnesses (Pet. App. 8), documented the most careful analysis of petitioner's claims:
"There remains an incredible number of incidents stemming from plaintiffs' arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Thomas v. United States, USCE 84-3552. Pet. App. 44.
Citing Leatherman v. Tarrant County, 113 S. Ct 1160, 1162 (1993), but without further explanation, respondents claim, "petitioner does not challenge the lower courts' use of the heightened pleading standard." Brief 4, n. 1.
The record shows that petitioner advanced non-conclusory allegations. For example, in yet another unexamined claim, Thomas' three groundless (Pet. App. 240-242) arrests for drumming and "disorderly conduct" would, by themselves, suffice to state a claim under 42 USC 1983, 1985(3) and 1986. Pet. 15; 26-27.
Because these particular allegations were made with greater factual specificity and particularity than is usually required
(e.g., Supplemental Complaint, March 21, 1991, Exhibits 9(a)(b), and
Declarations of William Thomas, paras. 10-22, and Ellen Thomas,
paras. 12-24), the opinion that petitioner failed to provide "greater
factual specificity and 'particularity'" seems to conflict
not only with Martin v. Malhoyt 830 F.2d 237, 257 (D.C.Cir 1987)
(Pet. App. 24), but also with Leatherman:
"It is not possible to square the heightened standard applied in this case with the liberal system of 'notice pleading...' Rule 8(a)(2) requires that a complaint include only 'a short and plain statement of the claim showing that the pleader is entitled to relief'." Leatherman at 1161.
In a separate case the court of appeals has determined that an arrest under the very same regulation at issue here "violated" the First Amendment. United States v. Doe aka Diana Nomad, 968 F.2d 86, 91 (1992), Pet. 44-45, see also, Declaration of Diana Nomad, appended to Supplemental Complaint, March 21, 1991.
Therefore, with respect to the drumming arrests, the opinion that "defendants acted ... reasonably in pursuing what they believed constituted regulatory violations" (Brief 3, citing Pet. App. 28-29) appears to conflict with the opinion in Doe.
It is also clear that the district court made absolutely no mention of any of those arrests. Pet. App. 4-28. Hence, the district court's opinion also conflicts with a profusion of circuit court opinions which require:
"a clear statement of reasons ... informing the parties of the grounds on which the action was dismissed, and 'more importantly,' ensure that the district court has carefully considered the complaint." Sills v. Bureau of Prisons, 761 F.2d 792 at 794 (1985); In re Pope, 580 F.2d 620, 623 (1978); Norris v. Slothouber, 718 F.2d 1116 (1983); In re Scott 709 F.2d 717, 718 (1983); Redwood v. D.C, 679 F.2d 931, 934 (1982); Crisafi v. Holland, 655 F.2d 1305, 1310.
Respondents contend petitioner's First, 3/ "Fourth, Fifth, Sixth, Ninth and Fourteenth Amendment" claims were "deficient under the heightened pleading standard." Pet. App. 23. 4/
As if it needed saying, the district court notes that "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff." Ramirez de Arrellano v. Weinbergher, 745 F.2d 1500, 1506." Pet. App. 11, see also United States v. Gaubert, 111 S.Ct. 1267 (1991).
Petitioner submitted a videotape with plainly stated purposes. Pet. App. 215-227. 5/ Those purposes were cross-
3/ Despite respondents' failure to comment on petitioner's First Amendment claims, the disruption of "constitutionally protected religious or political expression" is the threshold issue here questioned. Pet., Questions Presented, pg. 1.
4/ The district court commented at length on torts (Pet. App. 8,9), even noting that the Tort Claims Act does "not apply to constitutional claims." Id., n. 8. The Petition did not mention torts, because that issue had been well-settled.
"Tort claims ... are not at issue in this case. Assaults, deprivations, and destructions of property, false imprisonments, etc., are framed here as constitutional claims, because all interaction with appellees or their agents has occurred as a direct result of appellees' attemmpts to supress appellant's expressive and religious activities. See, Plaintiffs' Response to Federal Defendants' Reply to Plaintiffs' Opposition to the Motion to dismiss, February 8, 1989, pgs. 1,2." Opposition to Federal Appellees' Motion for Summary Affirmance, n. 1; cf. Appellees' Motion pgs 3-6,
5/ The video proposed to show that  petitioner's signs and literature were being unreasonably seized'  the "camping" regulation was arbitrarily enforced'  respondents collaborated onthe arbitrary enforcement;  respondents had a "chilling effect" on the exercise of petitioner's First Amendment rights, and  resopondents were playing a "game." Pet. App. 225-227.
referenced to the March 21, 1991 complaint. Pet. App. 228-232. The district court made no mention of petitioner's plainly stated purposes, but did allude to respondents' "seeming misconduct."
From petitioner's videotape the court could "not discern, what, if anything, prompted" respondents' "seeming misconduct" (Pet. App. 23, n. 15, see also, id 17, lines 12-16, compare Pet. 39-41), yet construed the facts liberally in respondents' favor. This decision runs contrary not only to the axioms in Ramirez, Gaubert and Conley, but also to opinions that require a jury or summary judgment to resolve factual disputes. E.g.,
"Whether this is all steam, or whether there is some substance depends on the proof offered either at trial or on motion for summary judgment demonstrating that there is no controversy." Richland v. Harper, 302 F.2d 324, 326.
It was an error for the district court to draw factual determinations on points which it "could not discern," rather than to submit those points, along with testimony and evidence, to a jury. Reuber v. United States, 750 F.2d 1039, 1054, 55.
It is uncontested that petitioner repeatedly suffered arrests, assaults, deprivations, and destructions of property, false imprisonments, disruption of constitutionally protected activities, and the intentional infliction of emotional distress. The lower courts do not allow these factual allegations to intrude, but simply dismiss these injuries because, they say, petitioner failed to show "improper considerations." Brief 3.
However, the district court allowed that petitioner was "compelled by ... religious convictions.... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Pet. App. 7. It is uncontested that respondents were commonly motivated by the diametrically opposed political principle of "Peace Through Strength." Pet. 1. This commingling of religious and political motives removes this case beyond the purely political disputes that have troubled this Court. 6/
"(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. Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977)." Hobson v. Wilson, 737 F.2d 1, 21 (D.C. Cir. 1984).
It appears that the lower courts' opinions run contrary to the landmark 42 USC 1983, 1985(3) case in the circuit:
"Plaintiffs alleged in their complaint that ... defendants engaged in a variety of legal and illegal activities in a specific effort 'to disrupt and interfere with the plaintiffs' political activities....
"The extraordinary nature of these charges makes this an easy case ... it is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations." Hobson at 27, emphasis in original.
The opinion, "petitioner could not show that the officials were motivated by improper considerations in enforcing the regulations" (Brief 3) also conflicts with many other circuit
6/ "We note at the out set the existence of some debate over the kinds of class-based discriminatory animus that 1985(3) requires. Both (Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 360 an Griffin v. Breckenridge, 403 U.S. 86) left unanswered whether 'political activity' simpliciter defines a class of people covered by section 1985(3)
court decisions holding that unreasonable police action violating First Amendment rights is actionable under 42 USC 1983 and 1985(3). E.g., Glasson v. City of Louisville, 518 F.2d 899, 903-904, 908, 911-12 (cases cited); cert denied, 423 U.S. 930.
Any factual questions regarding petitioners' beliefs and respondents' "ongoing conflict" should have been, but were not, subject to a factual inquiry.
Almost as an afterthought, in its sole allusion to "sanctions," the district court footnoted, "Because plaintiffs have failed to show cause for imposing sanctions against defendants, their motions for sanctions are denied." Pet. App. pg 28, n. 20.
In pertinent part Rule 11 provides:
"The signature of an attorney ... constitutes a certificate by him that ... the pleading ... is well grounded in fact ... If a pleading, motion or other paper is signed in violation of this rule, the court ... shall impose upon the person who signed it ... an appropriate sanction." Indianapolis Colts v. Mayor & Council, 775 F. 2d 177, 181.
There were two motions for sanctions in this case, both of which hinged on questions of fact. Pet. 52-55. First, with respect to the crucial issue of "discriminatory animus" (supra), defendants' counsel, U.S. Attorney Michael Martinez, purported:
"Plaintiffs' religious belief is in any case new found. Despite numerous arrests between 1981 and 1988 of William Thomas and his cohorts for their activities in Lafayette Park ... religious belief was never asserted as a basis for their actions until early 1987." Defendants' Reply to Plaintiffs' Opposition to the Motion to Dismiss, page 5, n. 3, January 27, 1989.
Evidence in the record shows that  religion had motivated petitioner's activities in the park from the beginning (Pet. App. 216, see also Pet. 56), and  prior to 1987 Mr. Martinez participated in litigation where petitioner asserted religious belief as a basis for his actions. E.g., Thomas, et. al. v. News World Communications, et. al., 681, F. Supp. 55, 58, 59. These facts, petitioner submits, constitute a prima facie showing for the imposition of sanctions.
"For a trial judge to rule in favor of a party the trial judge must necessarily conclude that the party's position is 'well grounded in fact'..." Indianapolis Colts at 181.
There is nothing in the record to support a conclusion that Mr. Martinez's assertions were "well grounded" at all.
"(T)he new provision that the court 'shall impose' sanctions mandates the imposition of sanctions when warranted by groundless or abusive practices.  Under Rule 11, sanctions may be imposed if a reasonable inquiry discloses the pleading ... is ... not well grounded in fact." Westmoreland v. CBS, 770 f.2D 1168, 1173, emphasis added.
Given nothing to indicate that Mr. Martinez conducted any "inquiry," the district court overstepped its discretion by refusing to conduct the required inquiry.
In the second instance, by citing as grounds for its dismissal of petitioner's complaint some of the very same factual allegations by respondent Holmes which are still at issue in the motion for sanctions (Pet. App. 24), the district court again ran afoul of the principle that "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff." Ramirez, and Gaubert, supra.
Summary affirmance requires the "clarity of the parties' positions and (a) well-reasoned opinion." Taxpayers v. Stanley, 819 F.2d 294, 297-298; Sills, supra. The foregoing discussion illustrates that a profusion of unresolved factual questions preclude establishing either "the clarity of the parties' positions" or a "well-reasoned opinion." Therefore, petitioner respectfully submits, the lower courts' decisions should be reversed.
In service to the God of life and love,
this 10th day of May, 1993,
William Thomas, petitioner pro se
2817 11th Street N.W.
Washington, D.C. 20001
Concepcion Picciotto, petitioner
P.O. Box 4931
Washington, D.C. 20009 *
Ellen Thomas, petitioner
2817 11th Street N.W.
Washington, D.C. 20001
* Ms. Picciotto and Ms. Thomas have been parties to this action from the inception. They were parties on appeal, and are signatories to the Petition for Certiorari. Correspondence is presently underway with the Clerk's Office to determine whether the apparent absence of Ms. Picciotto's and Ms. Thomas' names from the docket sheet of this case is the result of a clerical or procedural error.
WILLIAM THOMAS | | v. | 93-6732 | RONALD REAGAN, et. al. |
I, William Thomas, hereby certify that, on May 10, 1993, I served a copy of Reply to Brief for the Federal Respondents in Opposition to the Petition for Certiorari to William C. Bryson, Acting Solicitor General, by hand delivering it to the U.S. Department of Justice, Washington, D.C. 20530.
William Thomas, Petitioner pro se