CA 88-3130

____________________________________
No. 92-6732
____________________________________

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
_______________________

MARY HUDDLE, et. al.,

          Petitioners,

     v.

RONALD REAGAN, et. al.,
          Respondents

_______________________

TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
US App. (D.C.) 91-5304
____________________________________

PETITION FOR WRIT OF CERTIORARI
_________________________________

Ellen Thomas                     William Thomas                      Concepcion Picciotto
2817 11th Street N.W. Apt. B     2817 11th Street N.W.  Apt. B       P.O.B 4931              
Washington, D.C.  20001          Washington, D.C.    20001           Washington, D.C. 20008
202-462-0757                     202-462-0757

QUESTIONS PRESENTED

1. WHERE a "handful of demonstrators" bring a cause of action, under 42 USC Sections 1983, 1985(3)(4) and 1986; and the Administrative Procedures Act, alleging (with the support of sworn, virtually undisputed, declarations, affidavits, declarations, as well as documentary and photographic exhibits) that defendants are members of or acting in concert with A GROUP OF named and unnamed GOVERNMENT AGENTS, ACTED, first, without legal authority, under color of various traditions, customs, rituals, then under color of various District of Columbia regulations, and later under color of a series of specifically crafted federal regulations, FOR THE COMMON OBJECTIVE OF DISRUPTING the plaintiffs' CONSTITUTIONALLY PROTECTED RELIGIOUS OR POLITICAL EXPRESSION (conducted in a "public forum"), AND, AS A DIRECT and proximate RESULT OF numerous ACTS of various Government agents WHICH FURTHERED THE COMMON OBJECTIVE, PLAINTIFFS ARE SUBJECTED TO A PATTERN AND PRACTICE OF MALICIOUS HARASSMENT, including the DISRUPTION of the plaintiffs' EXPRESSIVE ACTIVITIES, assault, false arrest, false imprisonment, unwarranted seizure of signs and literature, CAUSING INJURY TO THEIR PERSONS, PROPERTY AND PROTECTED RIGHTS AND IMMUNITIES, and where, after twice granting preliminary relief (and before permitting any discovery, conducting any evidentiary hearing, or otherwise resolving numerous undisputed allegations raised in the Complaint), the District Court dismissed plaintiffs' cause of action for "failure to state a claim upon which relief can be granted," DID THE CIRCUIT COURT ERR IN SUMMARILY AFFIRMING THE DISTRICT COURT'S DISMISSAL?

2. WHERE, PLAINTIFFS, required by statute to allege "discriminatory animus," CLAIM THAT DEFENDANTS' OPPOSITION TO PLAINTIFFS' EXERCISE OF RELIGIOUS BELIEFS ANIMATED DEFENDANTS' ALLEGEDLY WRONGFUL ACTS, AND (despite defense counsel's repeated, vehement, but unsubstantiated denials) THE RECORD CLEARLY SHOWS DEFENSE COUNSEL KNEW (or, at best, forgot that he knew) PLAINTIFFS HAD IDENTIFIED "RELIGION ... AS AN ISSUE" AT LEAST ONE YEAR BEFORE DEFENSE COUNSEL FILED PAPERS PURPORTING THAT "RELIGION WAS ... NEVER AN ISSUE THAT PLAINTIFFS ADVANCED," AND PLAINTIFFS FILE A MOTION FOR SANCTIONS, and where, in a separate instance defense counsel also submitted papers which presented significant factual inaccuracies (and which were stricken by the District Court on a Motion pursuant to Federal Rules of Evidence 102, 103(a)(1), 104(b), 403, 803 and 902), AND WHERE PLAINTIFFS FILE A SECOND MOTION FOR SANCTIONS, DISPUTING THE FACTUAL ACCURACY OF SPECIFIC KEY CLAIMS, submitted in a third of counsel's pleadings, WHICH, despite opposing affidavits and the two pending Motion for Sanctions, WERE ULTIMATELY CITED BY THE COURT AS GROUNDS FOR DISMISSING PLAINTIFFS' CAUSE OF ACTION, WERE PLAINTIFFS DENIED MEANINGFUL ACCESS TO THE COURT WHEN THE CIRCUIT COURT SUMMARILY AFFIRMED THE DISTRICT COURT'S REFUSAL TO CONDUCT A HEARING ON PETITIONERS' MOTIONS FOR SANCTIONS?

PARTIES TO THE CASE IN THE DISTRICT COURT

Petitioners - Appellants - Plaintiffs

MARY HUDDLE
P.O. BOX 27217
WASHINGTON, D.C. 20038

CONCEPCION PICCIOTTO,
WHITE HOUSE ANTI-NUCLEAR VIGIL,
P.O. Box 4951
Washington, DC 20008

ELLEN THOMAS,
PEACE PARK ANTI-NUCLEAR VIGIL,
2817 11th Street, N.W.
Washington, D.C. 20001

WILLIAM THOMAS
PEACE PARK ANTI-NUCLEAR VIGIL,
2817 11th Street, N.W.
Washington, D.C. 20001

PHILIP JOSEPH
P.O. BOX 27217
WASHINGTON, D.C. 20038

SUNRISE S. HARMONY
P.O. BOX 27217
WASHINGTON, D.C. 20038

SCOTT GALINDEZ
P.O. BOX 27217
WASHINGTON, D.C. 20038

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

Respondents - Appellees - Defendants

GEORGE HERBERT WALKER BUSH
1600 Pennsylvania Avenue, N.W.
Washington, D.C.

Director, OFFICE OF MANAGEMENT AND BUDGET
Old Executive Office Building
1602 Pennsylvania Avenue, N.W.
Washington, D.C.,

UNITED STATES SECRET SERVICE
Executive Protection Branch
l800 Pennsylvania Ave. NW
Washington, DC

MANUEL LUJAN
Secretary, Interior Department (DOI)
18th and D Streets, N.W.
Washington, D.C.

RICHARD ROBBINS, DOI
18th and D Streets, N.W.
Washington, D.C.

RANDY MEYERS, DOI
18th and D Streets, N.W.
Washington, D.C.

MANUS J. FISH,
National Park Service (NPS)
1100 Ohio Drive, S.W.
Washington, D.C.

SANDRA ALLEY, NPS
1100 Ohio Drive, S.W.
Washington, D.C.,

UNITED STATES PARK POLICE (USPP)
1100 Ohio Dr. S.W.
Washington, D.C.

LYNN HERRING, Chief, USPP
1100 Ohio Drive, S.W.
Washington, D.C.

JAMES LINDSEY, USPP
1100 Ohio Drive, S.W.
Washington, D.C.

DEPUTY CHIEF LANGSTROM, USPP
1100 Ohio Drive, S.W.
Washington, D.C.

iii

MAJOR HOLMSBURG, USPP
1100 Ohio Dr. S.W.
Washington, D.C.

CAPTAIN BARRETT, USPP
1100 Ohio Drive, S.W.
Washington, D.C.,

LT. HUGH IRWIN, USPP
1100 Ohio Drive, S.W.
Washington, D.C.

LT. CLIPPER, USPP
1100 Ohio Dr. S.W.
Washington, D.C.

SGT. McNALLY, USPP
1100 Ohio Dr. S.W.
Washington, D.C.

SGT. RULE, USPP
1100 Ohio Dr. S.W.
Washington, D.C.

OFFICER FEREBEE, USPP
1100 Ohio Dr. S.W.
Washington, D.C.
PRIVATE KEVIN FORNSHILL, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
PRIVATE LESLIE WAITE, USPP
1100 Ohio Drive, S.W.
Washington, D.C.
PRIVATE MICHELLE BERKOWITZ, USPP
1100 Ohio Drive, S.W.
Washington, D.C.

DISTRICT OF COLUMBIA
Metropolitan Police Force
l350 Pennsylvania Ave. NW
Washington, DC

Captain MICHAEL CANFIELD
D.C. Metropolitan Police
500 Indiana Ave. NW,
Washington, D.C.

TABLE OF CONTENTS
.	QUESTIONS PRESENTED					i.
.	PARTIES IN THE DISTRICT COURT					ii.
.	TABLE OF CONTENTS (This Page)					v.
.	RELATED CASES					viii.
.	TABLE OF AUTHORITIES					ix.
.	ABBREVIATIONS USED HEREIN					xiii.
.	GROUNDS FOR JURISDICTION OF THIS COURT					xiv.
.	Opinions Below					xiv.
.	Statutory Provision Sustaining Jurisdiction					xiv.
.	CONSTITUTIONAL PROVISIONS AND STATUTES					xv.
I.	STATEMENT OF THE CASE
II.	DISCUSSION
.	A. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY AFFIRMANCE OF THE DISTRICT COURT'S DISMISSAL
.		1. The Lower Courts Erred in Holding that Petitioners Failed to State a Claim under 42 U.S.C. 1985(3)and 1986
.			a) The District Court Twice Granted Relief On the Basis of Facts Which Remain Undisputed
.			b) The Heightened Pleading Standard Was Met
.				i) Some Non-Conclusory Allegations of Respondents' Common Plan
.			c) Factual Issues in Dispute Preclude Dismissal
.				i) Two Brief Meetings of Minds to Illustrate Cause and Effect of Respondents' Major Conspiracy
.				ii) A Recent Unexamined Meeting of Minds Intended to Stifle Opposition to War
.					aa) The Lower Courts Erred in Dismissing Claims Against the President
.				iii) A Meeting of Minds to Illustrate the "On-Going Conflict"
.					aa) Respondents are Not Entitled to Official Immunity
.				iv) A Meeting of Minds in Furtherance of the Main Conspiracy
.				v) Another Unexamined Meeting of Minds Pursuing the Same Objective
.		2. The District Court Erred in Failing to View the Complaint in a Light Most Favorable to Petitioners
.			a) Who is Telling the Truth?
.			b) Chronological Precision or Judicial Precision?
.			c) Victims or Victimizer?
.			d) Who Goaded Whom?
.		3. The District Courts Erred in Failing to Consider the Complaint Carefully
.			a) The Lower Courts Erred in Failing to Address Petitioners' Allegations with Respect to 42 USC Section 1985(4)
.			b) The Lower Courts Erred in Failing to Address Petitioners' Allegations with Respect to Respondents' Publication of RN 1024-AB93, Federal Register Vol. 55 No. 193 ps. 40879-40881
.			c) The Lower Courts Erred in Failing to Address Petitioners' Allegations with Respect to Respondents' Application of 36 C.F.R 2.12.
.			d) The Lower Courts Erred in Failing to Address Petitioners' Allegations with Respect to Respondents' Application of Various District of Columbia's Statutes
.				i) The Lower Courts Erred in Holding that Petitioners Failed to State a Claim Under 42 U.S.C. Section 1983
.			e) The Lower Courts Erred in Failing to Address Petitioners' Allegations With Respect to Respondents' False Testimony and Publications
.			f) The Lower Courts Erred in Failing to Address Petitioners Claims Under the Fifth Amendment
.			g) The Lower Courts Erred in Failing to Address Petitioners Claims Under the Ninth Amendment
.		4. The Lower Courts Erred in Holding that Petitioners Failed to Allege Discriminatory Animus
.	B. The District Court Erred in failing to conduct a hearing on petitioners' motions for sanctions
.		1. The First Motion for Sanctions
.			2. The Second Motion for Sanctions
III.	IMPORTANCE OF THE CASE
IV.	CONCLUSION
.	APPENDIX with INDEX

TABLE OF RELATED CASES
Thomas v. Lujan, 791 F. Supp. 321; USDC Cir. No. 92-5204 currently pending decision of Respondents' (there Appellees) Motion for Summary Affirmance.	43
Thomas v. News World Communications, 681 F. Supp. 55-74 (1988). ("Thomas I")	7, 8, 46
Thomas v. United States, 696 F. Supp. 702-714 (1988). ("Thomas II")	7, 8, 9, 15, 17, 23, 28, 35
* United States v. Jane Doe, 968 F.2d (1992).	3, 26, 44
United States v. Harmony, 702 F. Supp. 295 (1988).	58
United States v. Picciotto, 875 F.2d 345 (1989).	3, 43
United States v. Picciotto and Thomas, USDC Cr. No. 82-243.	23
United States v. Picciotto and Thomas, USDC Cr. No. 82-358 (1983).	59
United States v. Thomas, USDC Cr. No. 83-0056 (1983).	56, 58
* United States v. Thomas, USDC Cr. No. 91-232.	45
* United States v. Thomas, 557 A.2d 1296 (Dist. Col. 1989). ("Thomas III")	30, 31, 32, 33, 38
United States v. Thomas, et al, USDC Cr. Nos. 87-62, 87-64 (1987).	58
United States v. Thomas and Thomas, 864 F.2d 188 (1988).	12, 37, 57, 59
*United States v. Thomas, Thomas, Thomas, Picciotto, Dorrough, Manning and Nelson, USDC Cr. 84-255 (1984).	17, 48, 59

viii

TABLE OF AUTHORITIES
Action v. Gannon, 450 F.2d 1227	50
* Adickes v. Kress, 398 U.S. 144	15
Airport Commissioners v. Jews for Jesus, 482 U.S. 203 (1986)	5
AM Int'l Inc. v. Eastman Kodak, 39 Fed.R.Serv.2d (Callaghn) 433	54
Anderson v. Liberty Lobby, 477 U.S. 317 (1988)	27
* Baggett v. Bullitt, 377 U.S. 976	22
* Bell v. Hood, 327 U.S. 678	46
* Bivens v. Six Unknown Named Agents, 483 U.S. 388 (1971)	36, 46
Boos v. Barry, 485 U.S. 312 (1989)	5
* Bounds v. Smith, 430 U.S. 817	55
Brandon v. D.C. Parole Board, 734 F.2d 56	41
Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3352	50
Brown v. Louisiana, 383 US 131 (1961)	5, 34
* Buckley v. Veleo, 424 U.S. 1	49
* Cantwell v. Connecticut, 310 U.S. 303	56
Carey v. Brown, 447 U.S. 455 (1980)	5
CCNV v. Watt, 703 F.2d 589	17, 19, 36
Celotex Corp. v. Catrett, 477 U.S. 317	16
Clark v. CCNV, 468 U.S. 288	7, 17, 18, 19, 36
City Council v. Taxpayers for Vincent, 103 S. Ct. 2118	7
City of Newport v. Facts Concerts, 453 U.S. 267	14
Coates v. Cincinnati, 402 U.S. 611	5
* Conley v. Gibson, 355 U.S. 41 (1957)	12, 22
Cox v. Louisiana, 379 U.S. 536 (1965)	5
ix
Dombrowski v. Pfister, 380 U.S. 479	22
Eastway Construction Corp v. City of New York, 762 F.2d 243	54
District of Columbia v. Carter, 409 U.S. 418	46
Elrod v. Burns, 427 U.S. 347 (1976)	6
Ex Parte Young, 209 U.S. 122	22
* Felton v. United States, 96 U.S. 703	57
Fitzgerald v. Seamans, 553 F.2d 220 (1971)	16
Frito-Lay v. Willoughby, 863 F.2d 1029	27
* Glasson v. City of Louisville, 518 F.2d 899 (5th Cir.), cert denied, 423 U.S. 930	46, 50
Gregory v. Chicago, 394 U.S. 111 (1969)	5
* Hague v. C.I.O., 307 U.S. 496 (1939)	5, 44, 49
* Halbertstan v. Welch, 705 F.2d 481	21
Hampton v. Hanrahan, 600 F.2d 600, 446 U.S. 754	50
Harlow v. Fitzgerald, 457 U.S. 800	31
Heisler v. Thomas, 24 ALR 1215; aff'd 260 U.S. 245	7
* Hobson v. Wilson, 737 F.2d 1 (1984)	16, 22, 31, 46, 50
Iannelli v. United States, 420 U.S. 770	56
In re Pope, 679 F.2d 931 (1982)	41
Jamison v. Texas, 318 U.S. 413 (1943)	5
Johnson v. Virginia, 373 U.S. 61	35
Keating v. Carey, 706 F.2d 377	50
Kollander v. Lawson, 461 U.S. 352	17
* MacArthur Area Citizens Association v. Republic of Peru, 823 F. 2d 606	53, 54
* Marbury v. Madison, 1 Cranch 149 (1803)	27, 55, 59
x
Marlowe v. Fisher Body, 489 F.2d 1057	50
Matthews v. Glenn, 41 S.E. 735	9
Means v. Wilson, 522 F.2d 833, 424 U.S. 958, cert. denied	50
Minnesota Chippewa Tribe v. Carlucci, 353 F. Supp 973	27
Mobile County v. Kimball, 102 U.S. 691	9
Monell v. New York, 430 U.S. 690	57
Morisette v. United States, 342 U.S. 246	60
Murdock v. Pennsylvania 319 U.S. 105 (1949)	58
Neff v. George, 354 Ill. 306; 4 NE 195(a)	7
New York Times v. United States, 427 U.S. 763	6
Newburry v. Ruffin, 45 S.E.2d 733	9-10
Ragsdale v. R.R. Co., 82 Miss 847	9
Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (1984)	6, 14
Redwood v. Council of D.C, 679 F.2d 931 (1982)	41
Ricks v. United States, 414 F.2d 1097, 134 U.S.App.D.C. 201	30
Rizzo v. Goode, 432 U.S. 362 (1976)	30
Scheuer v. Rhodes, 416 U.S. 232 (1974)	37
Schneider v. State, 308 U.S. 147 (1939)	20
Seamster v. Blackstock, 2 S.E. 38	10
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965)	34
* Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985)	41
* Spence v. Washington, 418 U.S. 411 (1969)	5, 56
* Taxpayers Watchdog v. Stanley, 819 F.2d 294 (D.C. Cir. 1987)	5
Taylor v. Louisiana, 378 U.S. 154	35
* Terminiello v. Chicago, 337 U.S. 4 (1945)	5
xi
* Texas v. Johnson, 491 U.S. 397 (1989)	5, 44, 57
Thornbill v. Alabama, 310 U.S. 88 (1940)	5
Thomas v. Review Board, 450 U.S. 707 (1981)	58
Tinker v. Des Moines, 393 U.S. 503	5
* United States v. Abney, 543 F.2d 984 (1976)	35
* United States v. Eichman, 58 LW 4745 (1990)	5
United States v. Grace, 461 U.S. 177	5, 44
United States v. Musser, 873 F.2d 1513	7, 33, 34
United States v. Nixon, 418 U.S. 683	27
United States v. O'Brien, 391 U.S. 368 (1969)	5
Walker v. Washington, 627 F.2d 541 (D.C. Cir.), cert denied, 449 U.S. 994 (1980)	5
Ward v. Connor, 657 F.2d 45, cert. denied, 455 U.S. 907	50
Ward v. Rock Against Racism, 490 U.S. 781, 790 (1989)	44
Warner v. Louisiana, 368 U.S. 157 (1961)	35
Watson v. Memphis, 373 U.S. 526 (1962)	34
* Westmoreland v. CBS, 770 F.2d 1168	52, 53, 54
White House Vigil for ERA v. Clark, 746 F.2d 1518	7, 18, 19, 20, 28, 29, 33, 44, 47
White Motor Co. v. United States, 372 U.S. 253 (1953)	32
* Wisconsin v. Yoder, 406 U.S. 205 (1972)	58
Wood v. Strickland, 420 U.S. 308	31
Wright v. Georgia, 373 U.S. 284	35

xii

Other Authorities
22 Col.L.R. 72	60
90 Harv.L.Rev. 1721 (1977), Private Conspiracies to Violate Civil Rights	50
L. Tribe, American Constitutional Law, Sec. 14-10	58
C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1357, p. 304 (1990)	6
Sanctions Under the New Federal Rule 11, A Closer Look, 104 F.R.D 182 (1985)	55
Words and Phrases	10

ABBREVIATIONS USED HEREIN

"App. p. ___" - Appendix hereto, page ___.
NOTE: [APPENDIX PAGE NUMBERS APPEAR IN UPPER RIGHT HAND CORNER OF PAGE]

"Docket # 45 Exhibit ___" - Clarification of Complaint filed January 17, 1989, Exhibits which correspond to Appendix hereto (See Index)

"Huddle Memo" - Dismissal Order below, May 24, 1991

"Mag. Memo" - January 13, 1987, Magistrate Burnett, Thomas II

"RECORD" - Record of this case

"S.CMPLT" - Supplemental Complaint herein, filed March 21, 1991, Docket #96

"Thomas I"/"II"/"III" - Identified in Huddle Memo, p. 4; Related Cases

xiii

GROUNDS FOR JURISDICTION OF THIS COURT

1. Opinions Below

Petitioners seek review of an unpublished opinion filed in the Circuit Court for the District of Columbia (USApp No. 91-5304), June 26, 1992, which granted respondents' motion for summary affirmance. Appendix ("App.") pgs. 1-2.

On July 23, 1992 the Circuit Court denied a Petition For Rehearing. App. pg. 3.

The summarily affirmed, unpublished opinion of the United States Court for the District of Columbia (J. Joyce H. Green), which dismissed petitioners' claims in USDC CA. 88-3130, was filed on May 24, 1991. App. ps. 4-28.

On June 20, 1991 the District Court entered an order denying a motion to reconsider the Order of May 24th . App. ps. 29-31.

On October 14, 1992, Chief Justice Rehnquist granted an extension until November 20, 1992 to file this petition. App. p. 32.

2. Statutory Provision Sustaining Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C. Section 1254(1) (Act of June 25, 1948, Ch. 646, 62 Stat. 298). Section 237 (b) of the Judicial Code [28 U.S.C.A. 344 (b)] also sustains jurisdiction of this Court.

xiv

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

A. FIRST AMENDMENT

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

B. FOURTH AMENDMENT

"The right of the people to be secure in their persons ... papers, and effects, against unreasonable searches and seizures, shall not be violated...."

C. FIFTH AMENDMENT

In pertinent part the Fifth Amendment provides:

"No person shall be ... deprived of life, liberty, or property without due process of law...."

D. SEVENTH AMENDMENT

In pertinent part the Seventh Amendment provides:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...."

E. NINTH AMENDMENT

"The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people."

F. FOURTEENTH AMENDMENT

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

G. 42 U.S.C. Section 1983

"Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

H. 42 U.S.C. Section 1985(3)

"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the law, or of equal privileges and immunities under the laws; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."

I. 42 U.S.C. Section 1986

In pertinent part provides a right of action against any person who

"having knowledge that any of the wrongs conspired to be done and mentioned in Section 1985 of this Title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so if such wrongful act be committed...."

FEDERAL REGULATIONS

J. "CAMPING"

Federal Register,, June 4, 1982, Vol. 47, No. 108, p. 24299-24306
Regulation cited at Appendix, hereto, Exhibit A. ps. A-7, A-8

36 C.F.R. 7.96(g)(vii)
36 C.F.R. 7.96(i)(1)
Formerly codified at 36 C.F.R. 50.27(a)

K. "WHITE HOUSE SIDEWALK REGULATION"

Federal Register, June 17, 1983, Vol. 48, No. 118, ps. 28058-28063 Regulation cited at Appendix, hereto, Exhibit A. ps. A-16, A-17

36 C.F.R. 7.96(g)(5)(viii)
36 C.F.R. 7.96(g)(5)(ix)
Formerly codified at 36 C.F.R. 50.19(e)(9) and (10)

L. "LAFAYETTE PARK SIGN SIZE REGULATIONS"

Federal Register, March 5, 1986, Vol. 51, No. 43, p. 7556-7566, Regulation cited at Appendix Exhibit A. p. A-32

xvi

36 C.F.R. 7.96(g)(5)(x)(A)(1)
36 C.F.R. 7.96(g)(5)(x)(A)(2)
36 C.F.R. 7.96(g)(5)(x)(A)(3)
36 C.F.R. 7.96(g)(5)(x)(A)(4)
36 C.F.R. 7.96(g)(5)(x)(B)(2)
Formerly codified at 36 C.F.R. 50.19(e)(11) and (12)

M. "THREE CUBIC FOOT REGULATION"

Federal Register Vol. 57 No. 25, ps. 4574-4576 Regulation cited at Appendix, hereto, Exhibit A. ps. A-38

Publication of RN 1024-AB93, Federal Register Vol. 55 No. 193 ps. 40879-40881, cited at Appendix, hereto, Exhibit A. ps. A-33, A-35

36 C.F.R. 7.96(j)(1)(2)

N. SIXTY DECIBEL REGULATION

36 C.F.R. 2.12(a)(1)(i)

Regulation cited at Appendix, hereto, Exhibit A. p. A-39

DISTRICT OF COLUMBIA STATUTES

O. "DISORDERLY CONDUCT"

D.C. Code 22-1121

Regulation cited at Appendix, hereto, Exhibit A. p. A-39

P. "MALICIOUS DESTRUCTION"

D.C. Code 22-403

Regulation cited at Appendix, hereto, Exhibit A. p. A-39

xvii

I. STATEMENT OF THE CASE

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.

II. DISCUSSION

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.

A. THE CIRCUIT COURT ERRED IN GRANTING SUMMARY AFFIRMANCE

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.

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."

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.

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.

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.

Indeed, William Thomas has been arrested at least twenty-five times in the 1981-88 period and convicted at least fourteen times. See, [Defendants'] Exhibit 4." Federal Defendants' Motion to Dismiss, ps. 4, 5, filed December 21, 1988.

In fact, although some of Thomas' arrests (far fewer than fourteen, infra p. 38) have resulted in convictions, far more have resulted in dismissal of charges, or acquittal. More importantly, focusing on Thomas alone is a prejudicial mistake. Petitioner Picciotto, for example, has been arrested at least ten times (e.g. Amended Complaint [Docket # 11], November 23, 1988, paras. 13, 15, 17, 18, 19, 20, 23, 26, S. CMPLT., para. 24, and routinely threatened with arrest, (id. paras. 55-58), with only one conviction. 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 ...

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."

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.

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.

1. THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS FAILED TO STATE A CLAIM UNDER 42 U.S.C. 1985(3) AND 1986

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) THE DISTRICT COURT TWICE GRANTED RELIEF ON THE BASIS OF FACTS WHICH REMAIN UNDISPUTED

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/

b) THE HEIGHTENED PLEADING STANDARD WAS MET.

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.

Petition for Writ of Certiorari - Continued