UNITED STATES DISTRICT COURT
Statement of Facts
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. |
Plaintiffs pro se, |
v. | C.A. No. 95-1018
| Judge Charles R. Richey
The United States, et. al. |
PLAINTIFF'S STATEMENT OF FACTS
AS TO WHICH THERE EXIST GENUINE MATERIAL ISSUES
Plaintiff hereby submits, pursuant to Local Rule 108(h), a statement of facts as
to which there exist genuine material issues:
1. Beginning in April, 1992 the Executive Committee for the Comprehensive
Design Plan for the White House and President's Park ("the Plan") began studying
changes to the area, including "security concerns," surrounding the White House.
Amended Complaint ("Com.") Exhibit 1.
2. The stewardship and oversight agencies involved in the plan included the
Executive Office of the President, Executive Residence at the White House, White
House Military Office, Department of the Treasury, U.S Secret Service, General
Services Administration, National Park Service, District of Columbia, Commission of
Fine Arts, National Capital Planning Commission, Advisory Council on Historic
Preservation, and the Pennsylvania Avenue Development Corporation. Id.
3. The Executive Committee recognized Lafayette Park as "a symbol of our free
and democratic nation" (id.), and commitment to preservation strategies "for the
symbols not only of the executive branch of our Republic, but also of public access to
the government." Com. Exhibit 2.
4. Consistent with a project which threatens such monumental impacts on
harmony between man and an environment of freedom and democracy, the Executive
Committee scheduled an Environmental Impact Statement to be completed by 1996.
Com. ¶ 13.
5. Then-secretary of the Treasury Lloyd Bentsen ordered "a 'thorough and
comprehensive investigation" to examine "the feasibility of techniques and measures
to safeguard the White House Complex and protectees therein from air and ground
assaults . . . .' Background Information on the White House Security Review." Defts'
Exhibit B ("Report"), at 1, 3.
6. The Review interviewed and received briefings from "the F.B.I, the CIA, the
FAA, ATF, the Metropolitan Police Department (MPD), the Park Police, the Capitol
Police, the Department of State, and the Department of Defense." Defts' Exhibit B, at
7. "At the conclusion, The Review produced a classified Report of over 500
pages, with an appendix of 260 pages ... and concludes with eleven major
recommendations." Id. at 25.
8. Unfortunately the Report doesn't throw much light on the pertinent issue of
the instant matter, because it "is classified in its entirety at the Top Secret level." Id.
9. "On May 19, 1995, Secretary of Treasury Robert E. Rubin ordered that:
10. Secret Service officials refused to meet with members of the D.C. Council,
and announcing they could supersede "local and federal laws" to protect the
President. See Plaintiff's Video Tape Exhibit ("Exhibit V.T."), segment 5, @ 1m 22s -0
2m 27 s..
11. In addition, however, on May 20, 1995, without prior, or, to date, any public
notice, and with total disregard for the appropriate measures being taken by the
Executive Committee, defendants also caused concrete traffic barriers to be positioned
in such a manner as to close Madison and Jackson Places to vehicular traffic.
12. Newspaper and television news took notice of the "historic" significance of
closing the "Symbol of Openness." E.g., Exhibit V.T., Segments 1-5, @ 0m 10s - 2m
23s. President Clinton said "Pennsylvania Avenue has been routinely open to traffic
for the entire history of our republic." (Washington Post article May 21, 1995,
Plaintiff's Exhibit 1.)
13. Rumor of the closure provoked immediate bipartisan opposition: On May
9, 1995, House Speaker Newt Gingrich was reported to oppose closing the avenue.
"Keep it open," he said on "Meet the Press"; "I mean there are limited risks in a free
society." (Washington Post article May 9, 1995, Plaintiff's Exhibit 2.)
14. Barricades were reportedly bad for business. Washington Post, May 28,
1995. (Exhibit 3.)
15. Impacts on business also provoked concern within the DC City
Government. (SEE Exhibit 4, "Closure of Pennsylvania Avenue Resolution of 1995.
PR 11-172," introduced by Chairman Clarke and Councilmember Smith, June 8,
1995.) SEE NBC report, Exhibit V.T., Segment5, @ 1m 22s - 2m 23s.
16. A broad flurry of editorials expressed concern, e.g. "Where will we draw the
line?" (Washington Post, May 22, 1995, Exhibit 5) and "Closing Pennsylvania Avenue:
A Sad Surrender to Fear" (Newsday, May 23, 1995, Exhibit 6); cartoonists ridiculed
exaggerated security concerns (Exhibits 7-9, Washington Post and Times, May 1995).
17. Likewise, on May 20, 1995, without prior, or, to date, any public notice, and
again with total disregard for the appropriate measures being taken by the Executive
Committee, defendants also caused concrete traffic barriers to be positioned to
enclose all of Lafayette Park. Defts' Memo, pg. 4; Complaint para. 12.
18. The maps purportedly documenting the "street restrictions" at issue, published in the
Federal Register, and submitted in support of federal defendants instant pleadings
(Defts' Exhibit C) misrepresent the actual situation with respect to the closures.
Compare, Pl's Exhibit 10.
19. In addition to the closures depicted in Defts' Exhibits C, Madison and
Jackson Streets were also closed and unsightly barricades were positioned around all
sides of Lafayette Park, including along H Street on the north of the Park. Pl's Exhibit
V.T., Segment 6, @.2m 24s - 6m 43s.
20.. Nothing on the record of this case makes a rational connection between
"security" and the barriers obstructing access to Lafayette Park.
21. Defendants claim, "(t)he street restrictions affect only general public
vehicular traffic." Defts' Memo pg. 3
22. On May 24, 1995, a Park Police officer said to plaintiff's wife, Ellen
Thomas, "We're wondering why you and Mr. Thomas haven't moved your signs into
the street." She asked, "You mean we can?" "Who will stop you?" the officer replied.
He explained that Pennsylvania Avenue was under the jurisdiction of the Metropolitan
Police, and that there are no regulations banning signs from the street. See,
Declaration of Ellen Thomas, filed herewith.
23. Plaintiff, who was not engaged in "vehicular traffic" (Defts' Memo pg. 3),
but was involved in activities protected under the First Amendment (e.g., Tr. pgs. 8-9,
23), was nevertheless affected. Tr. 29. Pl's Exhibit 11.
24. After defendants closed the street to vehicular traffic, plaintiff placed a sign
measuring 4' by 4', exclusive of supports necessary for safe and stable support, in the
area that remained open to the general public. Exhibit V.T., Segments 7-9, @ 6m
44s - 13m 03s. This sign was in strict complience with the appropriate regulations.
See, 36 C.F.R. 7.96 (g)(x)(A)(4)-(B)(2)), Thomas Declaration ¶ 8.
25. Notwithstanding the fact that another individual helped plaintiff carry the
sign into the street (Tr. 29, 30)), it can be moved by only one person. SEE
Declaration of William Thomas ("Thomas Declaration"), filed this date; COMPARE
D.C. Deft's Memo pg. 4.
26. Defendant Radzilowski testified he "explained (to Thomas) why he couldn't
have (the sign) on the street in front of Pennsylvania Avenue.... I told him that if he
did not move the structure from Pennsylvania Avenue, which was obstructing the
avenue, I would have to have him arrested for failing to obey a lawful order." Tr. 29.
But the conversation recorded on the Exhibit V.T. does not support defendant's
testimony V.T @ 8m 28s - 13m 03s.
27. Nothing on the record of this case makes a rational connection between
"security" and the placement of plaintiffs' sign in the area, which "restrict(s) only
general public vehicular traffic." COMPARE, Defts' Facts ¶ 6.
28. There is not the slightest indication that plaintiff actually obstructed
anything. Nor, logically, might plaintiff have obstructed a "street" which defendants
had already obstructed. Tr. 5. SEE Declaration of Ellen Thomas, ¶ 6.
29. Plaintiff contends this arrest was baseless and illegal because defendant
Radzilowski had no "lawful" authority to give the order which Thomas allegedly "failed
to obey." because he was not violating any regulations.
30. At the TRO hearing, four days after the arrest, Defendant Radzilowski
admitted that he still didn't know of any specific regulation which would have
authorized him to lawfully utter the "order" at the time he arrested plaintiff:
"The Director, United States Secret Service, is directed to close to
vehicular traffic the following streets in order to secure the perimeter of
the White House: (i) The Segment of Pennsylvania Avenue,
Northwest, in front of the White House between Madison Place,
Northwest, and 17th Street, Northwest, and (ii) State Place, Northwest,
and the segment of South Executive Avenue, Northwest, that connects
into State Place, Northwest." Defts' Facts, para. 7.
31. Thomas had respectfully requested that Captain Radzilowski consult the
Corporation Council before the fact. Exhibit V.T. Segment 9, @ 8m 28s - 13m 03s.
32. The Corporation Counsel declined to prosecute the false charge. Pl's
33. At the time of his arrest Thomas was engaged in expressive and religious
activities, clearly evidenced by his sign, which read "TRUST GOD AND DISARM
EVERYWHERE" as it faced the White House, and "WANTED: WISDOM &
HONESTY," facing Lafayette Park. His arrest punished his religious exercise, and
continues to chill and further erodes the exercise of that expression. SEE Plaintiff
Thomas' Declaration In Opposition To Defendants' Motions To Dismiss Or Alternatively
For Summary Judgment ("Thomas Declaration"), ¶¶ 13-15, herewith.
34. Captain Radzilowski inaccurately testified that he told Thomas "the avenue
was ... still a roadway being used by the fire department, ambulance service, and all
of the various police agencies, and we have motorcades on the avenue." COMPARE,
Tr. 31; Pl's Exhibit V.T., Segment 9; Thomas Declaration, ¶ 1.
35. In fact the closest the Captain came to explaining his "legal authority" was
to say, "I'm not going to argue with you, I'll give you all forty (of the regulations), if you
don't move we're going to take this thing and lock you up." Exhibit V.T., Segment 9.
36. Notwithstanding the Captain's contention that plaintiff was obstructing the
street, plaintiff's sign was four feet by four feet wide (Tr. 34), the street is seven car
lanes wide, and there is only room enough for one vehicle at a time to weave through
the concrete barricades obstructing Pennsylvania Avenue, motorcades normally
occupy only one lane anyway. Exhibit V.T., Segment 6, @ 2m 24s - 6m 43s;
Declaration of Ellen Thomas, ¶ 6, Declaration of Thomas, ¶ 9.
37. Defendants misrepresent plaintiff's sign as "a platform." The object in
question conforms strictly to the word of rigid National Park Service requirements that
regulate the size of signs used in Lafayette Park. Declaration of W. Thomas ¶ 8.
38. Notwithstanding defendants' contention that "the platform is not readily
movable, as it must be dragged by two adults from the Park to the street" (D.C. Deft's
Memo, pg. 13), the sign can, and often has been moved in non-emergency situations
by one person. See Thomas Declaration, ¶¶ 7-9 Declaration of Ellen Thomas, ¶ 6
39. Defendant Radzilowski inaccurately testified as to the treatment of other
people with signs on the street:
"THE WITNESS (Defendant Radzilowski): "We did not charge him with
occupying public space without a permit."
"THE COURT: But you could have?
"THE WITNESS: Yes, Your Honor.
"THE COURT: And you still could?
"THE WITNESS: I don’t know. I would have to seek legal counsel on that
now that it is after the fact...." Tr. pg. 32.
40. Shortly before Thomas was arrested, Captain Radzilowski told another
person, standing about twenty feet west of where Thomas was located, that unless he
removed the sign he had from the street, he would be arrested. The individual got
"out of the street very quickly." Exhibit V.T., Segment 9, @. 22m 40s, Thomas'
Declaration ¶ 5.
41. In all the time the sign in question was on a pedestrian sidewalk,
approximately 15 feet wide, a short distance from the seven lane street, approximately
90 feet wide, where plaintiff was arrested for placing it, there was not one single
incidence when it was alleged to be obstructing the far narrower sidewalk, although
emergency vehicles, including ambulances, firetrucks and large Park Service
Maintaince trucks regularly ride on the sidewalk. Thomas Declaration ¶ 10.
42. Thomas' arrest punished his religious exercise. Because of the arrest he
suffered humiliation, incarceration, and loss communication with the general public.
Thomas Declaration ¶ 15.
43. Defendant Radzilowski knew or should have known that his arrest of
plaintiff may have been a constitutional violation, and that he could have saved
everyone a lot of unnecessary trouble, but didn't:
Q· Were there any other individuals, Captain, carrying signs in the
(DEFENDANT RADZILOWSKI): Yes.
THE COURT: What happened to them, if anything?
THE WITNESS; Nothing, Your Honor.
MR. BRENNAN: I have no further questions, Your Honor.
THE COURT; Do you mean that you just arrested Mr. Thomas and let
all of the other people carry signs out there in front of the White House on the
THE WITNESS: Well, we can have -- there can be people in the street
carrying signs. We don't have a problem with that, because they can get out of
the street very quickly. Tr. 33. COMPARE Exhibit V.T, Segment 9, @ 8m 58s.
44. On May 22, 1995 Matteo Fareirra put Thomas' sign on the closed section
of Pennsylvania. Avenue. Three Secret Service agents threatened to arrest Mr.
Fareirra unless he removed the sign from the street. SEE also Declaration of Ellen
Thomas, ¶¶ 3-4, filed herewith.
Respectfully submitted this 19th day of July, 1995.
Q:. (D)o you recall me telling you that I thought that I had the right to do
what I was doing, and that I was protected by law, and that even before you
arrested me it would be in everyone’s best interest if you called the Corporation
Counsel's Office to see whether or not I was violating a regulation?
A. Yes, you did say that.
Q. And did you do that?
A. No, No, I did not. (Tr. pg. 4$).
2817 11th Street N.W.
Washington, D.C. 20005