Petition for Certiorari


2. THE DISTRICT COURT ERRED IN FAILING TO VIEW THE RECORD IN A LIGHT MOST FAVORABLE TO PETITIONERS

"The Plaintiff is entitled to all favorable inferences which may be drawn from [the] allegations. Scheuer v. Rhodes, 416 U.S. 232, 236." Huddle, Memo, pg. 7.

Petitioners submit that the District Court violated this axiom in assessing the pleadings of this case, and that the Court's departure from this standard is reflected in its assessment of the videotape. See also, infra, p. 44,
THE LOWER COURTS ERRED IN FAILING TO CONSIDER THE COMPLAINT CAREFULLY.
"(W)hat the Government is suggesting is that the Court should not hear our allegations on the basis of law. And I'm saying that there are facts here that have never been established. And it sees to me that the Government's legal arguments fail on that basis.... "I think that reason and logic and truth and all of the things that I believe the framers of the Constitution were pushing for strongly suggest that the Court should listen to all the facts in this case." App. ps. 99, 100.

a) Who is Telling the Truth?

Defendant's Exhibit 4 stands on the threshold of the veracity question, and, petitioners submit, it is not only a strong indication of who is telling the truth, but also that the District Court exercised undue prejudice, most unfavorable to petitioners, in assessing respondents' pleadings.

Exhibit 4, appended to Federal Defendants' Motion to Dismiss (Docket # 34), was entitled "Arrests of William Thomas" (supra, p. 10), and purported that Thomas was arrested "at least 25 times, and convicted at least 14 times." Magistrate Burnett, on the other hand, noted that by Thomas' "reckoning only seven arrests resulted in

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conviction." App. p. 38, ftn. 3. [18]

On January 3, 1989, petitioners filed a Motion to Strike (Docket #36) Exhibit 4. Petitioners' grounds were that Exhibit 4 would not further "the end that truth may be ascertained (Fed. R. 102)" that it would "confuse the issues (Fed. R. 403)" that it could not be authenticated (Fed R. 803 and 902), and that it was factually incorrect. Fed. R. 104(b).

That motion was finally granted. Huddle Memo, p. 4, ftn. 4.

Paradoxically, in dismissing this case the District Court still relies on the vague notation that "plaintiffs have ... been arrested and sometimes convicted." Id. ps. 3, 4.

b) Chronological Precision or Judicial Precision?

The District Court writes, "the videotape exhibit ... does not proceed chronologically." Huddle Memo, p. 13.

Without even viewing the videotape the chronology can be ascertained from the cross-referenced Video Index. App. ps. 228-232.

In fact there can be no question that 1) the tape is divided into three distinct segments ("Sign seizures," 000.00-022.29; "Violence," 022.30-044.57; and "Camping," 044.58-119.03), and 2) each segment of the tape is chronologically ordered within that segment. The "Sign Seizure" and "Violence" segment proceed in nearly precise


[18 This reckoning was prior to the reversal of Thomas III, supra, and a number of arrests, which occurred after the Magistrate issued his Memorandum, and were at issue in this case, but not mentioned in Defendants' Exhibit 4. Thomas now estimates the the actual total to be at least 32 arrests amd only six convictions.]

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chronological order. The "Camping" segment does contain two slight, but factually insubstantial, departures -- interposed for heightened clarity -- from perfect chronological order (057.14-58.25 and 105.50-106.25). To establish this fact, one need only view the videotape.

With the question of factual accuracy so plainly defined the District Court erred in not holding a hearing to determine who was not telling the truth.

c) Victims or Victimizers?

"As is apparent from the videotape ... plaintiffs are shown resisting arrest. [And] ... were not complying with the regulation that prohibits camping." Huddle Memo, 18.

The simple facts are that throughout the period documented on the videotape, a) none of the petitioners was convicted of violating any regulation, b) none of the petitioner was even accused of resisting arrest, and c) with the exception of the disputed arrests of Love and Galindez -- who were not convicted -- none of the petitioners was even charged with "camping."

For the court to have leapt to the conclusion that petitioners were "resisting arrest," and "not complying with the camping regulation," when there is absolutely no evidence of such violations outside of the court's interpretation of the tape, was quite unfavorable to petitioners. Again, Magistrate Burnett had the most accurate perception. "It is not for the (court) at this stage to determine credibility as to where the truth lies. It is sufficient to conclude that appellate precedent requires a trial because there are material issues of fact in dispute." App. p. 52. 7, p. 17.

d) Who Goaded Whom?

It seemed to the District Court as if "plaintiffs" had "goaded the police." Huddle

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Memo, pg. 13. But the court memorialized no specific basis for its speculation.

Perhaps the District Court thought petitioners were "goading" when they pressed for clarification between a "vigil" and "camping." Sgt. Rule said, "We're not going to argue that here, we'll argue it in court." Video @ 45.l7. As the Record shows, although they should have been, these issues never were argued in court, as Sgt. Rule promised.

Petitioners assert that a jury viewing the tape and weighing the testimony and demeanor of witnesses might well conclude that plaintiffs "goaded" defendants as mice might "goad" cats.

On the other hand, "although plaintiffs may have documented .. instances of seeming misconduct ... the Court cannot discern what prompted the defendants' response." Huddle Memo, pg. 14.

Yet, petitioners informed the Court (App. p. 222) that the thirty-odd hours of video from which the composite had been assembled was available for determining what, if anything, "prompted the defendants' response." These examples make it difficult to understand how the Court liberally construed respondents' "seeming misconduct" in favor of petitioners.

3. THE DISTRICT COURT ERRED IN FAILING TO CONSIDER THE COMPLAINT CAREFULLY

Although the District Court states it "considered each allegation raised by plaintiffs in each filing" (Huddle Memo, pg. 6), the Record contains nothing to suggest that the District Court gave any consideration to several pivotal issues. This oversight is patently at odds with various well established decisions in which the D.C. Circuit has repeatedly, "asked the district court to provide a clear statement of reasons when

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dismissing a complaint. The statement serves two purposes: it facilitates appellate review by informing this court and the parties of the grounds on which the action was dismissed, and, 'more importantly, it ensures that the district court has carefully considered the complaint and the applicable law.' In re Pope, 679 F.2d 931, 934 (DC Cir.1982); (other cites omitted)." Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985), at 794, citing Brandon v. D.C. Parole Board, 734 F.2d 56 at 62; Redwood v. Council of D.C, 679 F.2d 931, 934 (1982).

At least the court in Sills explained its dismissal with a "cryptic notation on the face of the complaint." [19] Id at 793. Here, there was not even a cryptic notation to explain the Court's dismissal of several most pertinent allegations:

a) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' ALLEGATIONS WITH RESPECT TO 42 USC SECTION 1985(4)

Neither the lower courts nor respondents made the slightest reference to the groundless arrests of petitioners Picciotto and William Thomas, the seizure of their signs and literature, and the resulting disruption of their expressive activities on February 2 and 3, 1991. S. CMPLT, COUNT TWO, paras. 5 & 28.

Nor does the Record contain any reference to the concurrent interference with petitioners' right to promote Proposition One voter initiative for nuclear disarmament and economic conversion and its local version, D.C. Election Board-approved D.C. Initiative 32, in violation of 42 USC 1985(4).

b) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS' PUBLICATION OF RN 1024-AB93 IN THE FEDERAL REGISTER

Petitioners alleged that, to further a conspiracy intended to "place administrative


[19 Unlike the situation in Sills, the District Court here pointedly held that this appeal was not frivolous. Huddle, Orders, September 4 & 11, 1991. App. ps. 236-239.]

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policy above the law," acting in concert with various identifiable superior and subordinate government agents, Respondent Robbins "entered false or grossly exaggerated information in the Federal Register, October 4, 1990, Vol. 55 No. 193 ps. 40879-40881 in violation of the APA, 42 USC 1983, 1985(3)(4), and 1986." S. CMPLT. Count Thirty-Three. [20]

Allegedly this proposed rulemaking was "unnecessary, unreasonable," and intended to subject petitioners to deprivation of "their freedoms of religion, communication, and association." Id. The District Court ignored this allegation.

Respondents did not reference these allegations until their Motion for Summary Affirmance in the Circuit Court: "With respect to the publication of RN 1024-AB93 ... (a)ppellees' counsel can locate no such publication, (and does) not know to what appellants are referring." Appellees' Motion, pg. 15, n. 15.

Petitioners explained to the Circuit Court that they were referring to the allegations summarized at S. CMPLT. Count Thirty-Three. For clarity, petitioners appended a copy of RN 1024-AB93 to their pleadings. Opposition to the Motion for


[20 On February 6, 1992, after the dismissal of Huddle, respondents published a final rule-making, limiting possession of property in Lafayette Park to "three cubic feet" (Fed. Reg., Vol. 57, No. 25, ps. 4575-4576), despite the fact that, "Many commenters and the petition (containing over 3,000 signatures) expressed the view that the rule was a burdensome and unnecessary restriction on freedom of thought and expression and that it was a regulatory attempt to negate constitutionally protected rights under the guise of protecting aesthetics." Id. p. 4574. These petitioners filed a Complaint, pursuant to the Administrative Procedure Act, which was dismissed -- also without any evidentiary hearing -- by the District Court (Thomas v. Lujan, 791 F. Supp. 321, Order denying reconsideration, Dismissal Order available on WESTLAW), is presently pending respondents' Motion for Summary Affirmance, USDC Cir. App. No. 92-5204.]

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Summary Affirmance at Exhibit 5.

While it may be puzzling to think that respondents' counsel could "locate no such publication," it seems incredible that the District Court granted respondents' motion to dismiss even though respondents offered no explanation on this crucial issue, which obviously implicated petitioners as respondents' objective, "the National Park Service stopped imposing (an improper) rule when the United States Court of Appeals for the District of Columbia Circuit reversed the criminal conviction against a defendant charged with a violation of the rule.... United States v. Picciotto, 875 F.2d 345." Federal Register Vol. 55 No. 193, October 4, 1990, pg. 40680 (RN 1024-AB93) (parentheses interposed from Picciotto).

c) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS' APPLICATION OF 36 C.F.R 2.12

Similarly, the District Court remained entirely mute on appellant's claims involving the enforcement of 36 C.F.R. 2.12. S. CMPLT. Count 17, paras. 13, 15, l8, l9, 20, 24, 30, 31, 32, 33, 40, 41, 42, 44, 54, 60, 61, 87. Supra, p. 37, 39-41.

A perplexing, very disturbing, aspect of the courts' dispostion of the 36 CFR 2.12 issue is that it appears to fly in the face of law and reason as articulated in Doe, supra. "(Doe) challenge(d) the constitutionality of (36 C.F.R. 2.12) on the ground that it impermissibly restricts ... First Amendment rights to engage in expressive conduct in a public forum." 968 F.2d at 87.

The Circuit Court concluded: "There can be no question that beating a drum in the context of a clearly identified anti-war demonstration is expressive conduct protected by the First Amendment. See, e.g., Ward v. Rock Against Racism, 490 U.S. 781, 790 (1989); Texas v. Johnson, 491 U.S. 397 (1989). We are additionally spared the need for any extended 'forum analysis' in this case, as no one disputes that Lafayette Park is a 'quintessential public forum,' see White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526-27, and accordingly,

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'the government's ability to permissibly restrict expressive conduct [there] is very limited.' United States v. Grace, 461 U.S. 171, 177; see Hague v. CIO, 307 U.S. 496, 515-16." Id., 88.

Given that Doe specifically addressed 36 C.F.R. 2.12, and specifically concerned an incident also specifically at issue in this Complaint (S. CMPLT. para. 19), it is indeed difficult to imagine what circumstances might justify failing to apply the principles stated in Doe to the facts of the instant case.

Again, respondents made no reference to the matter until their pleadings in the Circuit Court, where they simply claimed to be "unaware of any allegations relating to this regulation." Motion for Summary Affirmance, pg. 15, n. 15. It was an error to dismiss without some explanation.

d) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS' APPLICATION OF VARIOUS DISTRICT OF COLUMBIA STATUTES

During the course of respondents' ongoing conflict, petitioners have been arrested under color of the D.C. disorderly conduct statute. Some of these instances were specifically at issue in petitioners' pleadings. E.g., S. CMPLT. Count 17, see also, App. ps. 205(b)-208, paras. 28-59.

The District Court made no comment on petitioners' claims involving the District of Columbia disorderly conduct statute.

Again, not until the appellate level did respondents make any reference to this claim, asserting they were unaware that allegations of abuse under D.C. Code 22-1121(3) were aimed at them. Motion for Summary Affirmance p. 15, n. 15.

That respondents and the courts should be required to address this discrete issue is

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evidenced by the fact that it was the federal officials, not District of Columbia officials, who were responsible for abuse of process, petitioners' baseless arrests and the suppression of petitioners' protected exercise under color of D.C. Code Title 22 Section 1121(3). App. ps. 241 & 242, Information and Dismissal Order, United States v. Thomas, USDC Cr. No. 91-232, see also, supra, p. 25-27.

i) THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS FAILED TO STATE A CLAIM UNDER 42 U.S.C. Section 1983

In its opinion the District Court held that petitioners failed to state a claim under Title 42 USC Section 1983 because, "Section 1983 provides no relief against persons acting under color of federal law." Huddle Memo, pg. 15.

However, that opinion also fails to consider the different occasions respondents disrupted petitioners' constitutionally protected activities under color of the D.C. disorderly conduct statute. Hobson v. Wilson, 737 F.2d 1, , 737 F.2d 17, n. 49. [21] "(A) police officer forcibly took a poster from a young woman peacefully standing on a public sidewalk and destroyed it. Although not every encounter between a citizen and a policeman warrants extended judicial scrutiny and review, the implications of this apparently inconsequential incident raise important questions about the constitutional guaranty of freedom of expression, and require us to determine the circumstances in which police officers may be required to respond in damages in an action brought (under) 42 USC Sections 1983 and 1985(3)..." Glasson v. Louisville, 518 F.2d at 901, cert denied, 423 U.S. 930.

Perhaps the District Court, relying on Thomas I at 67, now holds that conspiracies to subvert constitutional provisions are permissible provided they occur


[21 For the Court's convenience, n. 49 tells us that, "(f)ollowing the Supreme Court's decision in (District of Columbia v.) Carter, (409 U.S. 418), Congress amended (42 USC Section 1983) to include the District of Columbia. See, Pub.L. No. 96-170, Section 1, 93 Stat. 1284 (1979)." Hobson, 17.]

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"'under color of' federal regulations." Petitioners hope this opinion is incorrect. In any case, the court apparently overlooked the fact that this action was also brought under the principles articulated in Bivens v. Six Unknown Named Agents, 403 U.S. 388: "An agent acting - albeit unconstitutionally - in the name of the United States possess a far greater capacity for harm than an individual trespasser.... (cites omitted) '(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.' Bell v. Hood, 327 U.S. at 684." Id. 302.

e) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' ALLEGATIONS WITH RESPECT TO RESPONDENTS' FALSE TESTIMONY AND PUBLICATIONS

Another of petitioners' key allegations, unmentioned in the disposition of this case, is that respondents have "organized and participated in a complex and far-reaching plan -- which included false testimony in federal courts and fabricated documentation in federal publications -- to falsely portray plaintiffs' exercise of constitutional rights as criminal behavior, under color of the regulations, in violation of the constitutional safeguards provided for in the Administrative Procedure Act, 5 USC 552 et. seq., and plaintiffs' Fifth Amendment rights." Record, e.g., S. COMPLT, Count 26, see also Counts 27, 33, and Docket # 1, para. 20.

Petitioners clarified this point in oral argument. "In this case, we are alleging that two of the specific regulations were pushed through the regulatory process with the assistance of false testimony and evidence on the part of some of these defendants." App. p. 266, Transcript, December 5, 1988, p. 24.

While the lower courts have apparently overlooked some of the Government's "incredible" testimony (App. p. 161, J. Bryant), there is ample evidence to support a

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claim that respondents and their agents have not told the truth, and nothing but the truth, when they went to court. E.g.: "The testimony offered by way of explaining the police conduct is absolutely unworthy of belief" (Id. p. 12),

and "(the Deputy Chief of the Park Police and Director of the Secret Service, Executive Protection Branch) testimony that a large sign had been used by an individual to scale the White House fence fell apart at the trial. There was no evidence that any sign belonging to the plaintiffs or anybody else had ever been used to scale the fence." Id. p. 22 (added)./P>

Nor did dubious testimony by Government agents end with White House Vigil. "Officer Haynes, the Government's ... primary witness ... (who) spoke with precision and exactitude and painstaking care, had selective memory ... (was) unable to remember even testimony that he had clearly specifically given in court hours earlier, failed to remember making, on some occasions, earlier arrests of the (petitioners, and) contradicted representations of the manner in which he inventoried the property...." United States v. Thomas, Thomas, Thomas, supra; App. ps. 145, 146 (parentheses added), compare, CoC, paras. 90-109.

It was further alleged that respondents made "false statements to the press for the purpose of maligning" petitioners, and justifying their unnecessary regulations. E.g. Record Docket # 1, para. 86. Well-documented (e.g., Record, Docket # 45, e.g., Exhibits 64-A thru D), and briefed (e.g., CoC paras. 64, 79, 80, 110).

Nothing in either the courts' or respondents' papers refutes these allegations.

f) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' CLAIMS UNDER THE FIFTH AMENDMENT

From the onset of this litigation petitioners contended that several incidents of intentional delay in presenting plaintiffs to a magistrate after arrest, thus resulting in several days of incarceration violated petitioners' rights under the Fifth Amendment. Complaint (Docket # 1), para. 54, Amended Complaint (Docket # 11), para. 50,

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Clarification of Complaint (Docket # 45) paras. 90, 92, 108.

Instead of explaining why respondents have not targeted petitioners with a pattern and practice of surveillance, threats, seizures, arrests, unnecessary force, and violence, directly resulting in deprivation of petitioners' Fifth Amendment right to remain in a public park unmolested by police abuse, the court reasoned, "Plaintiffs may have documented ... instances of seeming misconduct." Huddle Memo, p. 13.

"(Therefore) plaintiffs are surely free to challenge their arrests in the proceedings in which they are defendants." Id. p. 21, ftn. 17 (parentheses added).

There are two problems with this reasoning. First, as mentioned above, petitioners do not enjoy litigation. Second, as a general rule we have seen respondents drop their baseless criminal charges (supra, e.g., ps. 15 and 24-26; App. ps. 179, 180, 240-242); thus their authoritarian abuses usually evade any judicial review.

g) THE LOWER COURTS ERRED IN FAILING TO ADDRESS PETITIONERS' CLAIMS UNDER THE NINTH AMENDMENT

In Buckley v. Veleo, 424 U.S. 1, the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quality" of petitioners' expressive "continuous presence" depends on the "quantity" of petitioners' "continuity" in the "public forum." "(U)se of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515-516.

Although the right to remain in a public park without being harassed, intimidated, arrested and assaulted by law enforcement personnel may not specifically be enumerated in the Constitution, for the sake of civilized society, it must be recognized as

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a right inherently "retained" by the people.

4. THE LOWER COURTS ERRED IN HOLDING THAT PETITIONERS FAILED TO ALLEGE DISCRIMINATORY ANIMUS

The District Court erroneously held, "plaintiffs have ... failed to demonstrate federal defendants' discriminatory animus" Huddle Memo pg. 11), yet correctly observed that petitioners, "(c)ompelled by their religious and political convictions ... have sought to urge the general public ... and the President himself ... to strive towards ... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Id. ps. 3 & 4.

There is little question that "Section 1985(3) extended to purely political animus to reach conspiracies formed because a person 'was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist or because he was a Vermonter (quoting Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson, supra, at 16, n. 44. "(S)everal circuits have ruled that politics and religion define such [class- based discriminatory animus that section 1985(3) requires]. See, e.g., Keating v. Carey, 706 F.2d 377, 386-88 (discrimination on basis of political affiliation constitutes class-based discriminatory animus); Ward v. Connor, 657 F.2d 45, 47-48 (discrimination against members of Unification Church), cert denied, 455 U.S. 907; Hampton v. Hanrahan, 600 F.2d 600, 623 & n. 20 (discrimination based on political affiliation with racial overtones) modified on other grounds, 446 U.S. 754; Means v. Wilson, 522 F.2d 833, 839-40 (discrimination against supporters of insurgent candidate for tribal council presidency), cert denied, 424 U.S. 958; Glasson v. City of Louisville, 518 F.2d 899, 911-12 (discrimination against critics of the President), cert denied, 423 U.S. 930; Marlowe v. Fisher Body, 489 F.2d 1057, 1064-65 (discrimination against Jews); Action v. Gannon, 450 F.2d 1227, 1232 en banc (worshippers at predominantly White parish disrupted by Black civil rights workers); see also comment, Private Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977) ('[T]he legislative history behind section 1985(3) unmistakably LEADS to the conclusion that discrimination [on the basis of political affiliations or beliefs] was intended

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to be actionable.')." Hobson at 21 (paretheses in original).

It is undisputed that, as President and commander-in-chief of the police/armed forces respondent Bush, following the lead of his predecessor Ronald Reagan (Huddle Memo, p. 2, ftn. 1), promoted the concept of "Peace through Strength," in diametric opposition to the concept of "Peace through Reason" promoted by petitioners. S. CMPLT para. 71. This plain fact would make it easy for a jury to infer that respondents were animated by a desire to suppress public opposition to the Chief's policy of "Peace through Strength."

The District Court correctly apprehended petitioners' purpose for being in Lafayette Park. Ipso facto, respondents acted to disrupt petitioners' "religious and political convictions ... to strive towards ... 'Peace Through Understanding,' 'Peace Through Reason,' and 'Peace Through Love'." Huddle Memo, ps. 3 & 4.

That respondents posed a disingenuous challenge to petitioners' factual representations on this point merely indicates another disputed issue.

Petition for Certiorari - Continued



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