To state a claim under 42 USC Section 1985(3), petitioners
need only allege:
c) FACTUAL ISSUES IN DISPUTE PRECLUDE DISMISSAL
The circumstances now presented are almost indistinguishable
from those presented by the controlling precedents, for example:
"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 either injured in his
person or property or deprived of any right or privilege of a
citizen of the United States." Hobson v. Wilson,
737 F.2d 1, 14.
"Plaintiffs alleged in their complaint that from
[1981 to date] defendants engaged in a variety of legal and illegal
activities in a specific effort 'to disrupt and interfere with
the plaintiffs' [religious and] political activities, including
urging violent or unlawful actions, and supplying the public
and or news media with false information about the plaintiffs
and their plans.' Plaintiffs also alleged that 'some or all
of the activities of defendants' were conducted pursuant to a
plan ... which they contended, was 'designed to conduct surveillance
upon and to cause disruption of the activities of what the defendants
regarded as the ["Thomas Vigil"].' Plaintiffs claimed
that because these actions were undertaken expressly to disrupt
their lawful activities, they violated, inter alia,
plaintiffs' First and (Fourth) Amendment rights.
While it is apparent that the lower courts have not applied
the principles articulated in Hobson and Dombrowski
here, they fail to provide any reason for deviating from those
principles, or for failing to enjoin criminal prosecutions affected
by an unconstitutional regulatory enforcement policy. See. Baggett
v. Bullitt, 377 U.S. 976; Ex Parte Young, 209 U.S.
122. E.g., Docket #'s 21, 80.
To dismiss the instant complaint in the face of "facts
in support of (the) claim which would entitle (petitioners) to
relief" (Conley v. Gibson, 355 U.S. 41, 45-46),
the District Court relies squarely on Thomas II, and respondents'
dubious portrayal of 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. 10-11) is impossible -- it was pointed out that germaine questions
escaped review even in cases that resulted in convictions.
"The extraordinary nature of these charges makes this
an easy case. Whatever authority the Government may have to interfere
with a group engaged in unlawful activity, and however it may
be permitted to impede or deter rights of lawful association
as a by-product of legitimate Government actions, 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 [substituting],
emphasis in original, see also, Dombrowski v. Pfister,
380 U.S. 479, 482.
""(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
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.
"(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.
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,
i) TWO BRIEF MEETINGS OF MINDS TO ILLUSTRATE CAUSE AND
EFFECT OF RESPONDENTS' MAJOR CONSPIRACY
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,
"(b)y creating an atmosphere in which individuals would
be deprived of the protection of the most Fundamental Laws (i.e.,
1st, 4th, 5th, 9th and 14th Amendments); 42 USC 1983, 1985(3)(4),
and 1986; and the Administrative Procedures Act of the United
States of America, 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 .
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 depicting Respondent Irwin applying a chokehold
to Petitioner William Thomas' neck (App. ps. 179, 180), in one
of the many incidents which never went before a factfinder.
"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.
Respondents have supplied explanations for neither the
sledgehammer nor chokehold incidents, and the District Court provides
no substantial reason to assume that petitioners, indeed every
person within the legal jurisdiction of the United States, 13/
are not entitled to relief from abuse of person and property.
"(W)hat the government has done is to deprive us of
any protection from the police. They have passed these regulations...
(I)f we're given the opportunity to get to the facts, we'll
show that the regulations have been selectively applied 12/
against us... (B)ecause the regulations give the impression
that we're criminals, the police officers behave in a way that
they wouldn't normally behave towards us. We would like to hope
-- to think they wouldn't normally behave that way." App.
ii) A RECENT UNEXAMINED MEETING OF MINDS
INTENDED TO STIFLE OPPOSITION TO WAR
Notwithstanding the District Court's opinion that, "plaintiffs
do not state facts that suggest there was an invidious conspiracy"
(Huddle Memo, pg. 14), petitioners respectfully note another
instance where they alleged the elements required by Hobson,
but where the lower courts summarily dispatched petitioners' claims
even though respondents neither disputed, or even addressed petitioners'
12/ The District Court limited its discussion of
selective enforcement to the Presidential Inauguration, (Huddle
Memo, ps. 19-21), but neglected to comment on other examples contained
in the Complaint, which had been at issue for years. E.g., App.
13/ This matter was initially filed as a class action.
However, owing to their failure to comply with D.C. Local Rule
203(b), petitioners abandoned that claim on appeal. See, Record,
Opposition by Appellant William Thomas to Appellees' Motion for
Summary Affirmance, p. 1, n. 1, filed November 27, 1991.
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, pgs 39-41), 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,
one might also infer that,
together with Respondent Robbins, and others, the President
conspired to silence the drums, and that his "hyperbole"
was actually a lie intended to engender public animosity against
petitioners and drum up sympathy for the conspirators' wrongful
assault on the Constitution.
These undisputed facts raise "genuine issues that
properly can be resolved only by" trial. Anderson v.
Liberty Lobby, 477 U.S. 317, 324 (1988).
That the District Court failed to draw these very evident
inferences was most unfavorable to petitioners.
"(Respondents) must do more than simply show that there
is some metaphysical doubt as to the material facts." Frito-Lay
v. Willoughby, 863 F.2d 1029, 1034.
aa) THE LOWER COURTS ERRED IN DISMISSING CLAIMS
Citing Minnesota Chippewa Tribe v. Carlucci, 353
F. Supp 973, 976, "as a rule joinder of the President ...
is generally unnecessary," the District Court dismissed "all
claims against President Bush." Huddle Memo, pg. 2,
As a general rule the joinder of the President is very
difficult, but it is not impossible. United States v. Nixon,
418 U.S. 683. Given the intimate presidential involvement in oversight
of police enforcement actions suggested from the facts presented
here, this case presents one of those exceptional circumstances
where joinder of the president is necessary to obtain relief.
AGAINST THE PRESIDENT.
"It is not consistent with the policy of our political
institutions, or the manners of the people of the United States,
that any ministerial officer, having public duties to perform,
should be above the compulsion of the law, in the exercise of
those duties." Marbury v. Madison, 1 Cranch 149 (1803).
See, IMPORTANCE OF THE CASE, infra, p. 55, 59.
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.
iii) A MEETING OF MINDS TO ILLUSTRATE THE "ONGOING
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
After Mr. Watt declared his "intention" of prohibiting
"demonstrations and protests" in Lafayette Park (Record,
Docket # 1, para. 35, App. p. 178),
"(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. 84-3552)
Order, June 3, 1985, App. ps. 56-57, also, App. ps. 61-62.
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.
"(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
It is undisputed that, on March 11, 1983, very shortly
after a second meeting with Mr. Watt, Mr. Robbins ("the
principle drafter") kept "up the good work" by
participating -- in concert with agents of the U.S. Park Police,
U.S. Secret Service, and D.C. Metropolitan Police -- in a prearranged
scheme to remove appellant's then-legitimate signs from the White
"I was summoned down there by the officials of the
Uniformed Secret Service and by members of the United States
Park Police to address a problem they were encountering with
a protester...." Record, Docket # 45 Exhibit 49, April
8, 1983, Grand Jury testimony of Respondent Canfield (App. ps.
184-185), compare, Docket # 45 Exhibit 50, testimony of Park
Police Lt. Merrillat (App. ps. 186-187).
As a result of this joint action, Petitioner William Thomas
was arrested. The Declaration of William Thomas in Support of
the Amended Complaint, November 23, 1988 (App. ps. 188-205), illustrates
the scope of appellees' concerted action, and that no regulation
justified the action. S. CMPLT. para. 76.
The incidents of March 11, 1983, at issue here, were not
presented in White House Vigil, where the judicial inquiry into
this matter ended at January 13, 1983.
Respondents prosecuted Thomas, allegedly through inaccurate
information and false testimony.
"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." Record, Docket
# 45, Exhibit 69, App. p. 163, see also, White House Vigil
"The Park Police originally tried to get the U.S.
Attorney to paper the case as arson, but the papering people
refused.... According to AUSA Dan Cisin ... the Park Police
left, then came back about an hour later and cornered the chief
papering assistant in an office for an hour and a half until
the AUSA agreed to paper the case as a felony destruction of
property -- the White House gate, just to get rid of them...."
Record, Docket #45, Exhibit 60. Public Defender Memorandum.
App. ps. 209-210.
In that case, thank God, justice finally prevailed, when
the District of Columbia vindicated Thomas, holding:
It was noted that Thomas claimed he "had been repeatedly
arrested, beaten, harassed and otherwise mistreated by the police
in retaliation for his activities" (Thomas III, 1297), and
"challenged the legal basis for (respondents') actions."
Id. "Thomas pointed out, correctly, that the District has
no valid vagrancy law. See, Ricks v. United States, 134
U.S. App. D.C. 201; 414 F.2d 1097." Thomas III, 1298,
From this configuration of events one could reasonably
infer that respondents had a meeting of minds, adopted, and acted
to further, an "affirmative plan or policy ... showing their
authorization or approval of such conduct." Rizzo v.
Goode, 432 U.S. 362 (1976). Supra, p. 14-16, HEIGHTENED
PLEADING STANDARD. Yet, despite years of litigation (see, Related
Cases, supra, p. viii), the question of whether Mr. Robbins,
agents of the Park Police, Secret Service, Metropolitan Police,
et. al, used unlawful force to stifle constitutionally protected
expression, under color of regulation, has completely evaded inquiry.
S. CMPLT. para. 76.
"Malice ... imports ... the presence of ... an actual
intent to cause the particular harm which is produced or harm
of the same nature." United States v. Thomas, 557
A.2d 1296, 1299 (Dist. Col. 1989) ("Thomas III").
The District Court made an error in believing respondents
"would be entitled to a defense of qualified immunity."
Huddle Memo at 19.
Petitioners agree that when rendered in December, 1986,
Magistrate Burnett's findings with respect to respondent Canfield's
involvement in the events of March 11, 1983 seemed reasonable.
Huddle Memo pg. 22. But that was prior to the decision
in Thomas III in April, 1989.
aa) RESPONDENTS ARE NOT ENTITLED TO OFFICIAL IMMUNITY
Thomas III showed that petitioner obviously wanted
the constitutionally protected signs on the White House sidewalk;
that respondents' objective was to take the signs off the sidewalk,
and in their zeal for the "good work," it didn't matter
that no regulation justified their concerted effort. 14/
"'If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct....'
(T)he Government actor is presumed to have known about it, unless
he can bring forward undisputed facts establishing that because
of extraordinary circumstances he neither knew nor should have
known of the unlawfulness, summary judgment in his favor must
be denied." Hobson, 25, citing Harlow v. Fitzgerald,
457 U.S. 800, 818.
It was alleged, and, in any light favorable to petitioners,
must be inferred that in removing petitioners' signs from the
sidewalk, respondents' intentions were malicious.
"(A)n official would not receive qualified immunity if
he 'knew or reasonably should have known that the action he took
within his sphere of official responsibility would violate the
constitutional rights of the [plaintiff] or if [the official]
took the action with the malicious intention to cause a deprivation
of constitutional rights or other injury'." Hobson,
at 24, citing Wood v. Strickland, 420 U.S. 308 at 322.
14/ When prosecuting Thomas, respondents argued that
petitioners' "signs" were "structures."
In fact the largest sign (App. p. 204), was retrieved by petitioners
and returned to the White House sidewalk because "it didn't
violate regulations" (App. ps. 211-212), until the respondents
promulgated the White House sidewalk regulation on July 19, 1983.
See also, CoC, para. 64.
No previous litigation has determined "probable cause"
for respondents' actions on March 11, 1983. 15/ Hence,
"the ultimate issue in the present case (now becomes respondents')
subjective state of mind." Thomas III, 557 A.2d 1296,
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. pgs. 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,
iv) A MEETING OF MINDS IN FURTHERANCE OF
THE MAIN CONSPIRACY
Because respondents knew the sign attendance requirement
was unnecessary, in concert with others, Mr. Robbins crafted
an "Administrative Record" to justify a needless regulation.
"(T)he 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.
15/ Thomas III dealt exclusively with respondents'
allegations, and did not even begin an inquiry into petitioners'
Petitioners alleged the Administrative Record to be a collection
of "exaggerations, misrepresentations, and falsehood...."
E.g., Docket #45, Clarification of Complaint ("CoC").
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
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.
"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. pgs. 115-117.
For example, apparently confusing the Lafayette Park sign
regulation with the White House sidewalk regulation, where "security
concerns" were purported, the Musser Court held,
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
"(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.
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.