Statement of Facts


William Thomas, et. al.       |   
      Plaintiffs pro se,      | 
       v.                     |          C.A. No. 95-1018
                              |       Judge Charles R. Richey
The United States, et. al.    |      
      Defendants.             | 


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 22.

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:

"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.

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 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.

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 Exhibit 12.

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:

Were there any other individuals, Captain, carrying signs in the street?
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 avenue?
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.

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:. (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$).

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.

William Thomas
2817 11th Street N.W.
Washington, D.C. 20005