USDC CA 94-2427 Introduction
THOMAS, et al V. UNITED STATES, et al
USDC CA 94-2427
On December 20, 1994 millions watched on national T.V. as
Marcelino Corneil was shot to death on the White House sidewalk
by U.S. Park Police "Officer "X." Common knowledge of the case is very broad and equally shallow
On December 23, 1994, in "Death on a White House Sidewalk," a
Washington Post editorial articulated most of the agreed-upon
facts, and asked still-unanswered questions:
Particularly disturbed because Mr. Corneil’s gratuitous death
seemed to symbolize the ultimate abuse of police power, the day
before the Post editorial Concepcion Picciotto and Ellen and
Williiam Thomas, three individuals who have maintained a year-
round, round-the-clock vigil in Lafayette Park since 1981, had
filed a complaint in the U.S. District Court.
The complaint alleges Corneil chased O'Neill down the sidewalk, a
knife taped to a hand too crippled to grasp it, because O'Neill
had been kicking Corneil and jabbing him with a nightstick
shortly before. It also alleged that incident provoked by a
pattern and practice of harassment aimed at demonstrators or
other people deemed by police to be "undesirables." They asked
the Court to issue a temporary restraining order (TRO) to prevent
police from assaulting people, or from interfering with freedom
of expression in Lafayette Park under the pretext of enforcing
Some 40 days before Marcelino’s shooting Interior Department
officials had received a certified letter from the plaintiffs
complaining that Officer O’Neill, had abused his official
authority by threatening to arrest Thomas for possessing signs in Lafayette Park.
In court documents the U.S. Attorney claims that O'Neill
suspected Corneil of "camping." Plaintiffs point out that has
nothing to do with the complaint. "We're not suggesting that
Marcelino was correct in chasing Officer O'Neill, and we're not
saying the police can't enforce the 'camping' regulation," Thomas
explains, "What we are saying is that without reasonable and
rational guidelines to guide police officer in the enforcement of
petty regulations situations like this, where the officers acted
as judge, jury and executioners, are inevitable, albeit
intolerrable to any civilized society. If Officer O'Neill
suspected Marcelino of ‘camping,’ by law he had three options,
1) warn Marcelino, 2) issue a violation notice, or 3) arrest him.
When Officer O’Neill kicked and prodded Marcelino with his
nightstick, he exceeded his legal authority and committed
With greater specificity, perhaps, Thomas et. al. v. USA, et. al.
asks the very, still unanswered questions posed in the Post
editorial, yet the Post has failed to report on the case.
Contrary to what may have appeared on the videotape, the fact
finding process has at least managed to determine that Marcelino
was actually shot by 'Officer X,' who was not even seen on the
videotape, but fired coolly from off camera, where he faced
absolutely no personal danger. Still, the plaintiffs are not
satisfied with the progress of justice in this case. "Considering
how much federal judges, marshalls, and U.S. Attornys are paid,
I have to wonder whether the taxpayers are getting their money's
worth in this fact-finding process."
This case may also be setting some unusual legal precedents.
Plaintiffs do not know whether there have been instances of
slower TRO hearings, but they think there has never before been a
case where a plaintiff suggested dismissal of his own complaint
as "frivolous," the government opposed the suggestion, the court
held the case "not frivolous," yet dismissed the triggerman on
the grounds of "official immunity."
A TRO lasts ten days, providing only "emergency relief" prior to
a trial on the facts. Government attorneys routinely, daily,
defend against TRO applications, within hours, yet Judge Richey
Confronted by allegations of a questionable killing, and police
degradation of constitutional protections, on December 22, 1994,
Judge Charles R. Richey set a TRO hearing for January 6, 1995.
Incredious at the lengthy delay, plaintiffs requested Judge
Richey to recuse himself.. The Court explained the delay was
necessary, "to provide the parties with time to contest the matters asserted in the complaint."
At the hearing on January 6th, plaintiffs stated they were
prepared to put on six witnesses. The government said it was
"not ready" to challenge plaintiffs assertions. Nonetheless,
Judge Richey simply ignored the factual issues and ruled in favor
of the government, denying the TRO. Judge Richey set a
preliminary injunction hearing for January 12th.
At about 3:00 pm on January 11th the Government filed a Motion to
Dismiss, claiming the defendants were protected by "official
immunity," and the "heightened pleading standard." Essentially
the Government maintained that whatever was going on in the Park
had been going on for years, courts had never conducted factual
examinations of police misconduct claims before, and shouldn't
start now. At about 4:30 the Court issued an Order "recall(ing)
that at the January 6, 1995 hearing ... William Thomas
represented that the Plaintiffs might need additional time to
On January 27th Judge Richey denied plaintiffs the right to
conduct discovery on the grounds that the defendant U.S. Park
Police officers and Department of Interior lawyer who are
defendants in the case have "official immunity."
On February 23, 1995 Richard Robbins wrote Thomas a letter
stating that unless the plaintiffs "promptly bring their signs
into conformity with National Park Service regulations. Failure
to come into compliance will result in appropriate enforcement
action by the United States Park Police."
"These signs are exactly the size that are specified by the
regulation. They've been here for years. Now, under the
authority of a letter from Randolph Myers, which wasn't even
written until a month after this case was filed, Mr. Robbins is
trying to say this landmark demonstration is a crime," Says
Thomas, who has filed a motion to strike Mr. Myers letter from
the record as an ex post facto attempt by the U.S. Attorney to
transform plaintiffs into defendants.
On February 24, 1995 plaintiffs, insinuating that the entire
process was degenerating into a travesty of justice, requested
that the Preliminary Injunction hearing be rescheduled.
On April 12th Judge Richey issued an Order, splitting the
complaint into four "claims," dismissing three, and directing
that the fourth should go to trial for declaratroy and injunctive
At a hearing on April 19, 1995 plaintiffs submitted a motion for
partail reconsideration of the April 12th Order, and defendants
stated their intention to file their own Motion for Partical
Reconsideration of the April 12th Order. Defendants' motions are
due May 12th, and plaintiffs replies thereto are due on May 24th.
"I don't wear a watch, but I figure this has cost me at least 500
hours since December 22nd. If Judge Richey doesn't think the
case is frivolous, why can't we get a hearing? Way back in 1803,
in the landmark case of Marbury v. Madison, the Supreme Court
held 'the very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury.' And how could the Court decide 'Official Immunity' without resolving the issues raised in our three motions for sanctions"
Now, months and 100 documents later still not much is known about
the shooting incident, the U.S. Attorney has successfully avoided
all factual inquiries, and Officer "X" has even escaped
identification because of "concerns for his security."
"Society has got to decide whether it wants 'security' enough to
grant indiviidual police officers the power to determine whether
signs and flags are free expression or a crime, or whether
police officers will be permitted to find someone quilty of
violating a petty regulation, and then administering punishment,
beating, shooting, whateverr the officer deems appropriate.. In
cultures which allow police agents have been allowed to act as
judge, jury and executioner, individual liberty hasn't fared very
According to the caption beneath a picture of plaintiff
Concepcion Picciotto in the 1991 Berlitz Travel Guide, "It is the
right of every American to take a stand and make a point in
Lafayette Square," but the Government might be planning to
change all that.
- AGAIN GUNFIRE shatters the peace around the White House.
This time it involves a homeless man, shot twice by a U.S.
Park Police officer in front of the White House.... This
latest incident was unlike the shooting three days earlier,
when 9mm bullets fired in the wee hours of the morning by an
unknown gunman landed within yards of the presidential
mansion and went through a first-floor State Dining Room
window. Tuesday’s shooting also differs sharply from the
assault weeks earlier by a Colorado man who blasted away at
the White House with a semiautomatic weapon. In this week’s
shooting, someone died. White House press secretary Dee Dee
Myers said Tuesday’s incident ‘underscores the nature of
violence in our society and that nobody’s immune.’ That is
true. But this shooting raises as many questions as it
- "A widely seen videotape of the incident shows the
victim, Marcelino Corniel, in a face-off with four law
enforcement officers who have their handguns trained on him.
According to the FBI and other eyewitnesses, Mr. Corniel had
chased U.S. Park Police officer Stephen J. O’Neill from
Lafayette Square to the sidewalk in front of the White House
while brandishing a large knife. We still don’t know why Mr.
Corniel went after Officer O’Neill.... Park Police
officials say it was a tough call to make under some pretty
awful conditions. But a man is dead. And now officials must
defend that decision to fire.
- "From the videotape, Mr. Corniel appears to be standing
still before he was shot down. He obviously needed to be
The metropolitan police department’s homicide branch,
which has jurisdiction over Marcelino Corniel’s death, is
investigating. Although fellow officers are involved, the
Metropolitan Police Department and the U.S. Attorney who
must review the results must be objective, fair and honest."