Transcript of Hearing on TRO 5/30/95 Continued

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PROCEEDINGS

THE DEPUTY CLERK: Civil action number 95-1018, William Thomas versus the United States, et al. Mr. Thomas is appearing pro se. Present for the government, Craig Lawrence, Edith Marshall, Gary Randall, Patricia Weiss, Tom Dougherty, and present for the Corporation counsel, Bruce Brennan.

THE COURT: All right, Mr. Thomas.

MR. THOMAS: Good afternoon, Your Honor.

THE COURT: Based on your request, I am going to give you leave to file your complaint in forma pauperis.

MR. THOMAS: Thank you.

THE COURT: And therefore the matter before the court is your application for a temporary restraining order.

MR. THOMAS: Yes .

THE COURT: Proceed.

MR. THOMAS: If the court likes, I could take the stand and tell the facts, or just present it in this way. Or if it works, maybe I can just take an oath here and tell you the facts.

THE COURT: All right. Do you agree and declare under the pain and penalty of perjury or false statement that the testimony and statements you are about to make with respect to the facts are true, and accurate, and correct in every respect?


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MR. THOMAS: I do.

WILLIAM THOMAS, PLAINTIFFS' WITNESS SWORN DIRECT TESTIMONY

THE COURT: All right. You may proceed.

MR. THOMAS: Thank you. As Your Honor probably knows, Lafayette -- Pennsylvania Avenue has been closed between the 1700 block and the 1500 block. That happened on May 20th.

The area in front of the White House, we will call it the street, even though it may no longer be a street, if that is okay. The street in front of the White House is opened to pedestrian traffic, bicycles, roller skates, things of that nature.

There have been numerous groups of people who have come down, and stood in circles, and sang songs, and stood in large groups. People play roller blade hockey on the street in front of the White House, and there doesn't seem to be any restrictions aside from vehicular traffic.

Because I feel that I have a responsibility to communicate my opinions as effectively as I possibly can, it occurred to me that since that area was no longer being used by traffic, it would be most effective for me to move my signs into a more prominent position, and I moved one of my signs into the street, at which time --

THE COURT: Where?


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MR. THOMAS: On Pennsylvania Avenue.

THE COURT: In front of the White House?

MR. THOMAS: In front of the White House.

THE COURT: Wait a minute. As I understand it from prior cases with you, your signs have been directly across from the White House in the -- looking at the center of the north portico, is that correct? And you have been inside the sidewalk, but adjacent to the sidewalk inside of Lafayette Park?

MR. THOMAS: Since January -- since July 19th of 1983 --

THE COURT: Correct.

MR. THOMAS: -- when --

THE COURT: All right. Now from there you have moved it to where?

MR. THOMAS: Into the -- on to the pavement of Pennsylvania Avenue, approximately thirty feet south of where they are now.

THE COURT: Into the street?

MR. THOMAS: Into the street.

THE COURT: And what happened then?

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


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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.


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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?


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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?


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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


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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


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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 --


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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,


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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?


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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.