I. STATEMENT OF THE CASE
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.
A. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY AFFIRMANCE
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).
"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.
"(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.
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).
"(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.
"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.
"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.
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."
"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.
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.
"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.
1. THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS
FAILED TO STATE A CLAIM UNDER 42 U.S.C. 1985(3) AND 1986
"'(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) THE DISTRICT COURT TWICE GRANTED RELIEF
ON THE BASIS OF FACTS WHICH REMAIN UNDISPUTED
"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.
b) THE HEIGHTENED PLEADING STANDARD WAS MET.
"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.
"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.
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.
i) SOME NON-CONCLUSORY ALLEGATIONS
OF RESPONDENTS' COMMON PLAN
"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.
"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.
"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.
"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. 18
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.
"(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.
"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.
"(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.
"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.
"(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.
"[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).