Petitioin for Certiorari, November 20, 1992 -- Issues in Dispute

c) FACTUAL ISSUES IN DISPUTE PRECLUDE DISMISSAL

To state a claim under 42 USC Section 1985(3), petitioners need only allege:

"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.

The circumstances now presented are almost indistinguishable from those presented by the controlling precedents, for example:

"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.

"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.

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.

""(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 conflict."

"(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.

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.

i) TWO BRIEF MEETINGS OF MINDS TO ILLUSTRATE CAUSE AND EFFECT OF RESPONDENTS' MAJOR CONSPIRACY

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,

"(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 .

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,

"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.

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.

"(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. p. 118.

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.

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' claims.
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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. p. 291.

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.

"(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.

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.

aa) THE LOWER COURTS ERRED IN DISMISSING CLAIMS
AGAINST THE PRESIDENT.

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, ftn 1.

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.

"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.

iii) A MEETING OF MINDS TO ILLUSTRATE THE "ONGOING CONFLICT"

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.

"(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.

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 examined.

After Mr. Watt declared his "intention" of prohibiting "demonstrations and protests" in Lafayette Park (Record, Docket # 1, para. 35, App. p. 178),

"(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 1518, 1527.

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.

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 House sidewalk.

"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.

"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 at 1527.

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.

"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:

"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").

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, n. 4.

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.

aa) RESPONDENTS ARE NOT ENTITLED TO OFFICIAL IMMUNITY

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.

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.

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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, 1300 (substituting).

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.

iv) A MEETING OF MINDS IN FURTHERANCE OF
THE MAIN CONSPIRACY

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,

"(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.

Because respondents knew the sign attendance requirement was unnecessary, in concert with others, Mr. Robbins crafted an "Administrative Record" to justify a needless regulation.
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15/ Thomas III dealt exclusively with respondents' allegations, and did not even begin an inquiry into petitioners' instant claims.

Petitioners alleged the Administrative Record to be a collection of "exaggerations, misrepresentations, and falsehood...." E.g., Docket #45, Clarification of Complaint ("CoC"). para. 131.

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 know....

"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.

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.

For example, apparently confusing the Lafayette Park sign regulation with the White House sidewalk regulation, where "security concerns" were purported, the Musser Court held,

"(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.

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 5, 1986.

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.

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