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:

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 answers.

"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 subdued. 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."

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 regulations.

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 assault. "

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 perform discovery.

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 relief.

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 well."

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.

COMPLAINT