MR. THOMAS: After about a half hour, I would say, I was approached
by Captain Radzilowski, who told me that I would have to take my sign out of
the street. I told him that from previous consultation with the District of
Columbia
6
Corporation Counsel, it was my understanding that demonstrations were
permitted on public thoroughfares, so long as they did not cause an obstruction.
Captain Radzilowski just repeated that I had to get my sign out of the
street. I asked him if I was violating some ordinance, if I was obstructing
anything? He insisted that I just had to do what he said.
When I told him that I thought that I was within my legal rights, that in
fact what I was doing was protected by the law, he told me that he was giving
me an order, and then he had me arrested for failure to obey an order.
THE COURT: What happened then?
MR. THOMAS: Then I was taken down to one of the police substations
where I was booked and released on citation.
THE COURT: What happened then?
MR. THOMAS: Then I returned to Lafayette Park.
THE COURT: What happened then?
MR. THOMAS: Then I started working on this complaint.
THE COURT: So I take it that you, and Mrs. Thomas, and your friends,
are no longer occupying that place on the street in front of the White House?
MR. THOMAS: No. We are in the -- we are back at the place where we
have been for -- since 1983.
8
THE COURT: In Lafayette Park?
MR. THOMAS: In Lafayette Park.
THE COURT: I see. Do I recall correctly that in order to be in Lafayette
Park where you have been since 1983 that you had a permit from the National
Park Service?
MR. THOMAS: Well, sir, we are what they call a small group permit
exemption, and I think that that is the First Amendment, really, but what it
provides is that groups -- or individuals or groups of less than twenty-five do not
need a permit.
THE COURT: Well, didn't you have a permit there at one time?
MR. THOMAS: We have gotten permits for particular reasons at
particular times, yes.
THE COURT: To be there and to demonstrate as you have?
MR. THOMAS: We have gotten such permits, even though we are not
required to, and it is something of a compromise on my part.
THE COURT: Did you ever promise -- I mean seek to obtain a permit to
demonstrate on Pennsylvania Avenue, or what was previously Pennsylvania
Avenue, I guess it is still named such, in the middle of that street, thirty feet
from where you used to be, directly across from the north portico of the White
House?
9
MR. THOMAS: No, I did not. I don’t believe that such a permit is
necessary. I think that the First Amendment grants -- guarantees the right to do
that, and from my discussions with the Corporation Counsel, it was my
understanding that as long as you are not obstructing traffic, then you are
protected under the First Amendment.
THE COURT: All right. What is the basis of your claim under the Fourth
and Ninth Amendment -- Amendments to the Constitution and the Bill of
Rights?
MR. THOMAS: Well, the Fourth Amendment is that it was an unlawful
arrest.
THE COURT: All right. What is your basic -pardon me, what is the
basis of your claim under the Ninth Amendment?
MR. THOMAS: The Ninth Amendment talks about unremunerated
rights, and I believe that in order to have a civilized society, that people should
be guaranteed the right to exercise other rights that they are guaranteed under
the Constitution, and additionally, seeking to remain in a public place without
having to suffer police harassment or interference.
THE COURT: All right. Let me ask you this. What is the basis for your
claim under the Environmental Policy Act? I don't know that there is such an
act, but nevertheless you call it such in your papers?
10
MR. THOMAS: Well, I haven't had an opportunity to research all of that,
but it fits in with the executive -the Executive Committee for the Comprehensive
Design Plan of the President -- of the White House and President's Park. It is
exhibit -- exhibits one and two to the complaint.
Since 1992, the Executive Committee has been doing studies, including
security, to formulate a comprehensive design plan for the whole area. Part of
their study included an economic impact statement under, I believe, it is the
Environmental Protection Act. I am going to have to check that out a little more.
The libraries have been closed since I started working on this.
THE COURT: But you are not certain whether that Act gives you the
right to be here to complain about what Mr. Radzilowski did?
MR. THOMAS: Well, this goes more to the preliminary injunction, I think.
It goes more to the closure of the areas, because as we get on into the
preliminary injunction, I don't think that we are going to want to raise any strong
challenges to the closing of Pennsylvania Avenue itself.
But it appears from the barricades that have been erected around the
park that the government is planning to go well beyond closing Pennsylvania
Avenue, and I think that we would definitely like to raise some challenges to the
11
necessity for such extreme measures.
THE COURT: What does that have to do with the Environmental -- you
call it the Environmental Policy Act?
MR. THOMAS: Well, the Executive Committee, part of their planning
that has been going on since 1992 includes an environmental impact statement,
which I believe is required under the Environmental Protection Act. And so --
THE COURT: That is called NEPA for short, the National Environmental
Policy Act.
MR. THOMAS: Oh, thank you.
THE COURT: Not the Environmental Policy Act. If you are talking about
an environmental impact statement, or an environmental assessment, those are
two things that come within the purview of that statute.
MR. THOMAS: Well, that is, I am pretty sure, what I am referring to. All
I have is what you --
THE COURT: Well let me ask you this
MR. THOMAS: But can I just amplify a little bit?
THE COURT: Sure.
MR. THOMAS: I think that the purpose of this is the Park Service is
describing, and I fully agree, that Lafayette Park is a symbol of our free and
democratic nation, and I have been under the impression from a discussion that
I had with the project team manager, that this environmental impact study is
trying to include consideration of the impact
12
that closing the symbolic -- the symbol of our free and democratic nation will
have. It goes beyond just the squirrels and things.
THE COURT: We will get to it. I want to ask you this. You also assert a
claim under the APA, otherwise known as the Administrative Procedures Act.
MR. THOMAS: Yes, sir. That goes --
THE COURT: In what respect does that give you a cognizable claim for
a TRO, preliminary injunction, or any rights on the merits?
MR. THOMAS: Well, I am not -- I am not going to those things on the
TRO. The TRO is --
THE COURT: Well you know, Mr. Thomas, I have to make a
determination as to whether there is any likelihood of your success on the
merits.
MR. THOMAS: Oh, all right.
THE COURT: I have to consider these things.
MR. THOMAS: Oh, okay.
THE COURT: I am duty bound to do it. I don't have any choice.
MR. THOMAS: I am glad that you feel that way. Somebody has got to
do it. It should be a serious matter, I am sure. The Administrative Procedure
Act goes to, I think, well-established procedures that government agencies are
supposed to follow before --
13
THE COURT: Well, do you have any claim here that is cognizable by
this court under article three of the Constitution wherein the agencies, whoever
they may be, acted contrary to law, committed an act that could be fairly said
and characterized as a legal matter as arbitrary and capricious?
Does it constitute agency action unlawfully withheld? or any of the
kinds of claims that are typically asserted under the APA? I don't see any of
that in your papers, and you know that I have only had a chance to cursorily
examine them.
MR. THOMAS: Well, it is there if you --
THE COURT: Where is it? Go get it. who are these nice people? Are
these associated with Mr. Thomas
MS. WEISS: I am Patricia Weiss. I am one of the Department of
Justice.
THE COURT: Justice?
MS. WEISS: Yes.
MS. SPINDATTI: I am RACHEL SPINDATTI. I am an intern for
Corpsration Counsel.
THE COURT: Oh, nice to have you both. Welcome.
MS. SPINDATTI: Thanks.
THE COURT: Who is this gentleman?
MR. ROBINSON: Your Honor, Rick Robinson with the National Park
Service,
14
THE COURT: Oh, nice to see you.
MR. THOMAS: Count three.
THE COURT: Of the complaint?
MR. THOMAS: Page number nine,
THE COURT: Wait just a minute. Oh, because they didn't publish it in
tha Federal Register according to you ?
MR. THOMAS: Right.
THE COURT: Is that required by the APA?
MR. THOMAS: I believe that. it is. I believe that
THE COURT: What section?
MR. THOMAS: Again, I don't have it right off the top of my head, I
think it is 50 -- 552-C, but I wouldn't want to be held to that, because --
THE COURT: All right.
MR. THOMAS: And there is a number of things that I --
THE COURT: Just a moment please.
MR. THOMAS: -- refer to, on the APA.
THE COURT: Mr. Thomas, I have another question on another
subject. What policy, practice, usage or -- policy, practice, usage of the district
Of Columbia, was violated here?
MR. THOMAS: Policy and practice usage of the District of
Columbia?
15
THE COURT: Yes.
MR. THOMAS: Well, if I understand it, I guess what I am talking about
is a false arrest,
THE COURT: What policy -- where is that set forth, in what policy,
practice or usage ?
MR. THOMAS: I am not sure of the context of your question, your Honor.
Are you asking about why the District of Columbia -
THE COURT: I am asking a legitimate, discrete question based on your
pleadings that you have filed in this court.
MR. THOMAS: Well
THE COURT: You have effectively said that they have violated the
custom, policy or practice of the District of Columbia in closing the park and
doing these other things Including, perhaps, your arrest, i guess.
MR. THOMAS: Yeah.
THE COURT: What is it?
MR. THOMAS: Well, if what you are referring to is the District of
Columbia as a defendant?
THE COURT: Yes.
MR. THOMAS: Oh, I -- to tell you the truth, I am not sure whether or not
the District of Columbia should be a defendant.
THE COURT: Well, sir, you have asserted a claim.