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 known and


unknown government agents acted out a pattern and practice of malicious harassment, directly subjecting petitioners to injury in their persons, property and protected rights and immunities.

Respondents' actions occurred first without legal authority, then under color of District of Columbia "unlawful entry," "trespass," "vagrancy," and "disorderly conduct" statutes, which did not result in any convictions.

Since 1982 Respondent Robbins, an Assistant Solicitor in the Interior Department, has authored four regulations, each of which was directed at petitioners' vigil, an activity officially identified by the euphemistic title, "the Current Situation in Lafayette Park."

Respondent Richard Robbins is the apparent linchpin between respondents, acting as liaison to Cabinet-level officials, while coordinating the disruption of petitioners' public expression through the supervision of the police actions which furthered the common objective of respondents' conspiracy.

In 1982 Mr. Robbins and others promulgated a "camping" regulation, which respondents selectively enforced against petitioners without furthering any substantial government interest. By refusing to define "casual sleep" and "storage of property," respondents failed to advise petitioners as to how they could conduct their constitutionally-protected expressive activities without running afoul of the "camping" regulation, a regulation which respondents had specifically asserted was "not intended to stifle First Amendment expression." This lack of definition, coupled with false testimony to the courts, enabled respondents to cause petitioners' imprisonment.


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 petitioners' 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 App. 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 1/ 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.

1/ The District Court's brief reference to the Statute of imitations (Huddle Memo, op. 22) apparently omits the fact that the alleged conspiracy is "ongoing."


"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989) Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940).

This is a serious matter. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See New York Times v. United States, 427 U.S. 763; Elrod v. Burns, 427 U.S. 347, 373.

Unfortunately, the irreparable injury alleged in this case goes beyond loss of First Amendment freedoms. It is undisputed that, time and again over the course of the ongoing conflict, petitioners have repeatedly suffered arrest, assault, intimidation, imprisonment, had signs, literature, and other expressive articles seized and/or destroyed, and had their expressive activities disrupted and suppressed.

"The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Ramirez de Arellano v. Weinbergher, 745 F.2d 1500, 1506 (D.C. Cir. 1984) C. Wright & A. Miller, Federal Practice and Procedure, Section 1357, p. 304 (1990)." Huddle Memo, pg. 7.

A primary problem with the resolution of this case is that the lower courts took respondents' credibility uncritically and with undue prejudice. On a motion to dismiss, respondents are not entitled to untested credibility. Infra, SANCTIONS, ps. 54-55.


First, instead of submitting the factual accuracy of petitioners' well-documented allegations to judicial inquiry, the District Court mistakenly 1) ignored key material 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 2/
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 (USDC CA No. 84-3552 (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.

2/ As has been frequently pointed out, stare decisis must not be confused with res judicata, since the two concepts rest on different principles. Heisler v. Thomas, 24 ALR 1215, aff'd 260 U.S. 245. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Neff v. George, 354 Ill. 306; 4 NE 195(a).


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"), pg. 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." 3/ 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.


3/ On February 5, 1987, Thomas II, consistent with the recommendations of Magistrate Burnett, that case was headed for trial. See, USDC CA. No. 84-3552, Order, February 19, 1987. App. p. 54. The status conference set for April 2, 1987 was held on April 9th. App. p. 55. The conference set for May 1, 1987 (id.) was postponed, without comment, and never happened. The decisions in Thomas I, 681 F. Supp.55, and Thomas II, 696 F. Supp. 702, represent a complete and abrupt reversal of all previous decisions in that case (e.g., App. ps. 56-60, 61-67), and the dismissal "without prejudice" left petitioners' "detailed" (id.), well-documented claims undisputed.
This unexplained reversal permits almost limitless speculation. One might reasonably speculate that the District Court was intimidated by a pro se complaint alleging that the President of the United States conspired (either, in the terms of the statute, "directly or indirectly") with a plethora of administrative agents to "place administrative policy above the law" (S. CMPLT, COUNT 33), with the intent to eliminate "one of the chief distinctions that sets us apart from totalitarian regimes." Daunting as this prospect may seem, it should not preclude judicial review.


Over the eight years of litigation the conflict continued, while petitioners consistently, but fruitlessly, sought a hearing of fact. Except for the Magistrate's inquiries, respondents' allegedly wrongful acts have completely escaped judicial review.

"Despite repeated attempts by plaintiffs to instigate a proper judicial hearing into the particulars of this dispute the underlying facts remain unexamined. Yet the dispute continues to be played out in an allegedly uncivilized manner, on the streets, under cover of darkness.
"(T)his one-sided contest has only been 'argued' in the press (see, e.g., Clarification of Complaint, filed January 17, 1989, paras. 80, 100, 110), a situation which does not enhance accurate understanding.

"'Connie's rendition ... is a pack of lies at the most,' said (Park) Police Lt. Hugh Irwin. 'And it's because her world is so small sitting on the sidewalk, associating with the people she does.' See, Exhibit A. hereto [App. p. 68 hereto] Associated Press wire story [quoting Respondent Irwin's comments about Petitioner Picciotto].

"On the Record the only real question appears to be, who is telling the truth? For various reasons (see, e.g., Plaintiffs' Opposition to Federal Defendants' Application for Protective Order and to Renew the Motion for Sanctions, filed November 20, 1989) questions of veracity have never been reached." Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 21, 1989, Docket #74 [brackets added]; see also, Plaintiff's Motion to Expedite the Hearing on Application for a Temporary Restraining Order, ps. 2, 3, filed November 23, 1988, Docket #14.

Apparently relying on the "without prejudice" 4/ dismissal of Thomas II (696 F. 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. E.g., paras. 21-69.

4/ "'A dismissal of a suit "without prejudice" is no decision of a controversy on its merits and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.' This statement of the law is found in Matthews v. Glenn, 41 S.E. 735, and is sustained, if it needs any authority in support of it, in Ragsdale v. R.R. Co., 82 Miss at 847 and Mobile County v. Kimball, 102 U.S. 691." Newburry v. Ruffin, 45 S.E.2d 733, 734; see also, Seamster v. Blackstock, 2 S.E. 38, citing 7 Wall 107. See, publication Words and Phrases for other constructions and definitions of "without prejudice."


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, pgs 38-40.

Respondents' strongest argument, predicated on Defendant's Exhibit 4, was prejudicial, as well as factually flawed: 5/

"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.... 6/
"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.


5/ Almost ironically, the District Court granted petitioners' Motion to Strike "Exhibit 4." Huddle Memo, p. 4, ftn. 4. Exhibit 4 is discussed in more detail infra. ps. 38, 57.

6/ Plaintiffs Huddle, Joseph, Harmony, Galindez, and Love have all succumbed to the unrelenting pressure of respondents' ongoing conflict, and have abandoned both their expressive activities in the Park, and further attempts to reason with the judicial system.


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. 7/

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.... 8/ (T)he Thomases have always believed that they have not over the years engaged in camping ... and that they have in accord with their deeply held religious beliefs given up all living accommodations... It may be unfortunate that the Thomases' deeply felt convictions have led them to persistent behavior running afoul of the clear import of the regulation. That disagreement ... perhaps reflects courage, conscience, or tragedy." United States v. Thomas and Thomas, 864 F.2d 188, 199.

7/ When considered in the light most favorable to petitioners, one would have to infer that even those arrests which did result in convictions would not have occurred except as a result of respondents' premeditated acts and false testimony at petitioners' criminal trials.

8/ To distinguish their "constitutionally protected vigil" from "criminal camping," the primary relief sought by petitioners was definitions of "camping" and "storage of property" (App. p. 34), a detail which only complicates the Circuit Court's "puzzle."


Of course, the real tragedy would be that, as petitioners contend, respondents successfully manipulated words, facts, and the federal court system to make it appear as if petitioners ran afoul of regulations which were actually intended, promulgated or enforced to undermine their free exercise of thought, expression, and assembly. Infra, ps. 55-60, IMPORTANCE OF THE CASE.

This grave possibility, central to petitioners' complaint, was not addressed by the lower courts.


The District Court held "that plaintiffs are not entitled to the relief they seek." Huddle Memo, ps. 2 & 3.

"'(A) complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Huddle, Memo, ps 6, 7, citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957).


A court may, of course, grant preliminary relief, and later, after determining facts, decide that further relief is not merited. But that is not the case here.

Twice, on the basis of still undisputed facts, the District Court granted preliminary relief against incidents in which respondents' agents disrupted petitioners' 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.


Given that the District Court has twice granted relief on the basis of facts -- still undisputed -- which plainly entitled petitioners to relief, it is difficult to understand why petitioners would not be entitled to permanent relief against future repetitions of similar incidents. City of Newport v. Facts Concerts, 453 U.S. 267, 279. 9/


The District Court held, "(p)laintiffs ... have failed to explain sufficiently how defendants have engaged in a common plan." Huddle Memo, pg. 11. In requiring that "plaintiffs must allege and PROVE five elements" (id., pg. 6, EMPHASIS added) the court elevated the pleading standard to unattainable heights.

Certainly proof would be necessary for petitioners to have prevailed at trial. However, at this point, where "the factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff" (Ramirez, supra), petitioners assert, the Court got ahead of itself.

"Petitioner argued that although she had no knowledge of an agreement between (respondent) and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the non-circumstantial evidence of the conspiracy could only come from adverse witnesses." Adickes v. Kress, 398 U.S. 144 at 157.


9/ Regrettably, these incidents in which relief was granted were neither the beginning nor the end of respondents' efforts to disrupt petitioners' constitutionally protected exercise of free thought and expression.

For example, in Plaintiffs' Complaint in Support of Their Motion for a Temporary Restraining Order (Docket # 86), filed September 18, 1990, petitioners reference another incident -- also unaddressed by respondents or the court.
While the "courthouse is not an unfamiliar edifice" (Huddle Memo, p. 4), petitioners do not enjoy litigation. Moreover, because the District Court asked "that there be no further pleadings in this case" (Transcript, January 9, 1989, p. 41, App. p. 129), petitioners exercised some restraint, and their pleadings do not catalog all respondents' ongoing activities.


Petitioners assert that, for example, Thomas' three groundless arrests for drumming and "disorderly conduct" (infra, pg. 26) would, by themselves, be sufficient to state a claim under 42 USC Sections 1983, 1985(3)(4) and 1986.

Erroneously the District Court opined, "(e)ach plaintiff points to a single instance -- his or her own arrest -- as illustrative of the alleged unlawful pattern...." Huddle Memo, pg. 20.

Obviously, a single arrest does not a pattern or practice make. But it is equally obvious that petitioners are not talking about a single arrest. For another of the many possible examples contained in petitioners' pleadings, the several indisputably baseless arrests of Petitioner Picciotto (Docket # 11, paras. 17, 18, 19, 20), which officer Haynes couldn't remember making (infra p. 47-48, App. ps. 145-146), far exceeds a single arrest.

Once again, Magistrate Burnett's opinion, enlightened by hearing limited testimony, is best informed.

"There remains an incredible number of incidents 10/ stemming from (petitioners') arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct." Thomas II, Mag's Memo, pg. 9, App. p. 44.

The specific question of whether the elimination of petitioners' signs and expressive presence from Lafayette Park was the object of a conspiracy planned and executed by respondents, has entirely escaped judicial review.

10/ In their pleadings below petitioners detailed many incidents not mentioned in the instant pleading.


"Initially, we note that this Circuit has previously permitted actions to be brought under section 1985(3) against federal officers. See, Fitzgerald v. Seamans, 553 F.2d 220 (1971) (White House official may be liable in section 1985(3) action). As a result, we pause here only to resolve any lingering doubts about the rationale of the law of this Circuit.... Because the law in this area for years was based on conclusory, unsupported statement and misguided interpretations of an unfortunately cryptic opinion, we want to make absolutely clear the basis of our decision." Hobson v. Wilson, 737 F.2d 1, 19.

As shown below, the record of this case surely contains "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324.


The District Court held that, "(e)xcept for isolated instances of misconduct ... plaintiffs have failed to support their conclusory allegations of conspiracy." App. p. 30.

In contrast, prior to his "without prejudice" dismissal, Judge Oberdorfer held,

"Plaintiff lists each defendant and each act allegedly undertaken by that defendant in furtherance of the alleged conspiracy. This detail provides defendants with the definite statement required by Fed. R. Civ. P. 8." Thomas II, Order, June 5, 1986. App. p. 61.

Petitioners respectfully submit Judge Oberdorfer's opinion was correct.

"Turning first, now, to the camping allegations, let us make some findings of fact. We are in an area where a vigil protected by the constitution 11/ and by a governmental permit has been taking place [since June 3, 1981]. 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.


11/ Petitioners' vigil is entitled to full constitutional protection. In pertinent part, 36 CFR 7.96(g)(1) provides:
"(g) Demonstrations and Special Events....
(1) the term 'demonstration' includes demonstrations ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views ... which has the effect, intent or propensity to draw a crowd or onlookers."
As recently as March 5, 1985 the Park Service explicitly claimed that it had no desire to "preclude continuous vigils." Fed. Reg. Vol. 51, No. 42, page 7559.


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, pgs, 23, 36, 36-47, 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 expression in appropriate places abridged on the plea that it can be exercised in some other place" (Schneider v. State, 308 U.S. 147 (1939)), respondents manipulated the facts (infra, p. 28-31, 47) until the Circuit Court agreed that the alternative across the street was sufficient. White House Vigil at 1528.


In 1985 respondents, apparently still not satisfied that "demonstrations and protests" had been sufficiently prohibited, portrayed yet another aspect of a constantly shifting, euphemistic "Current Situation in Lafayette Park," where,

"(o)ver the past two years, two to six demonstrators have accounted for a vast majority of the ... signs that continuously occupy ... Lafayette Park.
"One of these signs indicated that ... the ... signs belonged to two persons who had been in the Park since June of 1981." Fed. Reg., August 20, 1985, Vol. 50, No. 161 (Docket, Docket # 45, Exhibit 129), p. 33572.

In still another "Current Situation in Lafayette Park, respondents' continued interest in the "Thomas Vigil" was again obliquely expressed by reference to "a few demonstrators who physically occupy ... space in the Park with signs." Fed. Reg., March 5, 1986, Vol. 51, No. 43, p. 7557, Docket # 131.

"The ACLU specifically questioned the motives of the National Park service in promulgating these regulations, suggesting that the sole purpose for the amendments is to harass certain individuals now demonstrating in Lafayette Park. To support this proposition, the ACLU attached to its comments several affidavits by Concepcion Picciotto, a long-time demonstrator, that alleged ... the Park Service is allowing private citizens to destroy demonstrators' signs." Id. p. 7560.

By this juncture of their ongoing onslaught against demonstrations in a "unique public forum," respondents, with the assistance of the U.S. Attorney's Office, had achieved a level of judicial tolerance which enabled them to summarily exonerate themselves of any appearance of wrongdoing by merely publishing a one paragraph 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."