Memorandum

3. LEGAL SUBTERFUGE?
(a). CLOSING PENNSYLVANIA AVENUE

"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 necessity for such extreme measures." Tr. pgs 10, 11; Com. ¶¶ 14, 18.

Although plaintiffs' position is clear, defendants take great issue with the closing of Pennsylvania Avenue. Apparently they maintain there is nothing to talk about, because, they published some inaccurate maps in the Federal Register (which, they point out, they determined they didn't have to publish) except for the fact that they've got a security problem, everything else is secret..

That position is inconsistant with the way things used to be. Nothing in the record precludes the possibility of more effective and/or less intrusive measures. See, United States v. O'Brien, 391 U.S. 368, 376-77(1969). Defendants actions should be subject to review under those terms.

(b). MISLEADING MAPS

Defendants have made it difficult to seriously discuss the issues because (1) everything is such a secret, and (2) what isn't a secret is unclear or distorted. Graphically speaking their maps are a good example of the need for a fact-finding to determine what defendants are really up to.

The maps purportedly documenting the "street restrictions" at issue, published

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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; Pl's facts ¶ 18.

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; Pl's facts ¶ 19.

How are we supposed to honestly pretend we're talking about a valid factual picture of reality, when defendants file maps which are as out of touch with reality as defendants' Exhibits C & D?

I. WHO'S PLAYING A GAME?

Plaintiff submits the facts here strongly suggest the instant case is just one inning in a long game of semantics the object which has been to circumvent the First Amendment, to realize one well intentioned goal or another, by distoring reality through clever but baseless arguments, with the effect of to legitimizing the victimization of harmless people whose annoying words or actions would otherwise qualify for "constitutional protection."

"THE COURT: Let me ask you this ... hasn't it been one of those things where he gets arrested today for doing 'x' conduct, and then he goes back and does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z'. In other words, wherever you folks draw the line, he wants to stay on that line.... (H)e is trying to comply with these regulations, and as you make them, and as he gets arrested for them ... whatever you say do, he'll do."

"THE GOVERNMENT: He plays games.

"THE COURT: Well, I don't know who is playing a game really." United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983. Pl's Exhibit 28, pgs. 6 & 7. [27]

J. PLAINTIFF'S CONFESSION

Pursuant to the provisions of local Rule 106(h), I, William Thomas, plaintiff, pro se, in the above entitled action hereby affirm under penalty that the following, and everything else in this document is true and accurate to the best of my knowledge and recollection:

I have tried to "keep my toes on the line,' of the First Amendment, not because

[27 It is true that plaintiff has brought a number of suits similar to this one. It is also true that the closest any of those complaints hare approached to a factual hearing is memorialized in a Memorandum written, on January 13, 1987, by Judge (the Magistrate) Arthur Burnett. After listening to "the testimony taken upon deposition in the presence of the Magistrate of ten (government) witnesses in the case." (id. pg. 6), the Magistrate decided that there was "an incredible number of incidents stemming from these arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct" (pg. 8) "which mandate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief." Id., pg. 14. The Magistrate's Memorandum is currently in the Court's chambers in Thomas I, see, Motion to Recuse, filed December 2, 1995, Exhibit 3, thereto.

The Magistrate's call for a trial was hidden under a conclusory conclusion. Thomas v. United States, 696 F.Supp. 702,at 706. Patiently in search of a factual hearing, plaintiff finally brought the tangled procedural roadblocks to the Supreme Court where only one Justice recognized the need to test facts. Thomas et. al. v. Reagan, et. al, 113 S.Ct. 2397, cert denied, (May 13, 1993), J White, dissenting; "in light of Leatherman v. Tarrant County, 113 S.Ct. 2397.

In criminal proceedings claims of police abuse evaded review on other legal grounds. E.g., United States v. Thomas, 557 A.2d 1296, see also,

"The Court's ruling today does not mean that the Government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed....

"To continue with this trial would transform the trial from a prosecution into a persecution, and, accordingly the respective motions for judgment of acquittal are ... granted." U.S. v. Thomas et al, CR No. 84-233, September 27, 1984 transcript, pg. 1026.]

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I think it's wrong, but because I think it's my responsibility to communicate as effectively as my limited resources allow. Pl's Exhibit 17, pg. 2.

I do not think I am perfect, or that I know the truth. I am searching for Truth. Pl's Exhibit 18. I try very hard not to mistake my perception of reality for Reality.

My vigil at the White House is neither an exercise in civil disobedience, or an attempt to use the area for living accommodation purposes. Id.

Although I don't know much, I sincerely believe that I have a pretty good idea of the purposes inside my own head., therefore I do know that the purpose of my vigil in the park is a sincere desire to promote reason and logic (not that I understand either), toward a more perfect social experience. Op. cite..

Plaintiff had the following talk with a tourist who did not understand why the gravest dangers to liberty lurk in insidious encroachment by well-intentioned zealots (not that I would classify the tourist as one):

"I believe in freedom of speech. I support your right to be here, speaking your mind. But with you and your sign right here I can't get a good shot of the White House." The tourist said.

"Actually you can get a picture of the White House from several angles that completely exclude my signs." Plaintiff replied.

"Why couldn't you just take your signs across the street, and protest there. Like I said, I agree with your First Amendment rights, but I came all the way from Oshkosh, this is my vacation and I want to get some nice pictures to remember it."

"Please, don't misunderstand. My purpose for being here is not to ruin your vacation. I am here out of a sense of duty. I feel I have a responsibility to communicate as effectively as possible on issues I believe to be of great importance to the human race."

"I agree that what you are talking about is important, but I don't see why you couldn't say it just across the street." The tourist persisted.

"Let's say I was to take my signs right now and move them across the street. Inevitably, I think, it would only be a short time before someone else would come by and say, "I agree with your First Amendment rights, but you're

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ruining my vacation. Why don't you put your signs on the top of Mt. McKinley? Unless a line is drawn somewhere, there will be no place to draw a line."

Thomas Declaration ¶ 20, see also, 1601 Pennsylvania Avenue World Wide Web site: http://www.prop1.org/fire/tourist.htm See also, Thomas Declaration ¶ 20.[28]

K. YELLNG "FIRE!"

"I have nothing to bring to you that is novel, that has not been said, that has not been written, that has not been thought of for quite a time past, but yet what I have to say and the facts that I bring to your attention seem to me not to have impressed the American people deeply, and in a crisis like this it seems to me a surprise that the great body of our electors are not thinking seriously, earnestly, almost prayerfully, about the situation in which the world finds itself today. ...

"The only fact which we all agree upon is that men and women everywhere, after this war ended, craved above everything else peace and surcease of national loss, the freedom of every man and woman to pursue his or her call, his or her vocation, free of restraint, free of aggression in accordance with the traditions and the conscience of the community in which he or she lives....

"But modern science by its crowning success of the fission of the atom has changed all that...."

"You have got a world today that depends upon the exercise of power,

[28 First, plaintiff began a vigil on the White House sidewalk. Thomas Declaration ¶ 12. It was unquestionably protected under the Constitution, until Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).,

Second, the vigil on the White House sidewalk, and with the right to have large signs, was protected under the First Amendment, until the Court of Appeals decided people still had a right to have large signs in Lafayette Park, but,

"Should they find the government's regulations too restrictive (on the White House sidewalk) they may always carry their demonstration immediately across Pennsylvania Avenue to Lafayette Park. (T)he regulations leave unaffected a multitude of possibilities for meaningful protest on the sidewalk and within a few yards in adjoining areas." ERA v. Clark, 746 F.2d 1518, 1528.

Third, the right to have large signs in Lafayette Park disappeared when the government claimed "the Ellipse and the Mall as alternative sites for demonstration activities." Fed. Reg., March 5, 1986, Vol. 51, No. 43, p. 7557.

Finally, we've arrived at the point where a police officer can say, "Move you sign a few feet that way, because I think there might been a herd of camels coming through," and the U.S. Attorney can get find a very sympathic ear just by chanting "ERA, CCNV."]

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crass power. Do the people realize this? I think the people of our country do not at all realize it. I think the people have been given an anodyne. They have been told: `we have the security; that we needn't expect another war; that everything is all right. Go back to your bench. Go back to your shop in safety....

"You are told, on the other hand, that we must build the mightest military machine that this United States has ever known. I think the latter is a sheer futility." Excerpted from an address by Justice Owen Roberts:to members of the Associated Press, April 22, 1946.

Justice Roberts identified a combination of sovereign nations plus the fission of the atom plus disinformation as a crisis situation. Although he said it shortly before plaintiff waas born, Justice Roberts didn't say anything more, or much different than what plaintiff has been trying to say for almost a decade and a half.

It appears to the court Mr. Thomas, that what you're saying is that you're not going to change and really, it's not the office or the purpose of the court to ask you to change. The only thing the court's concerned about is whether you obeyed or disobeyed the law and, in connection with the sentence I impose this morning, whether it can reasonably expect that you will obey the law in the future.....

One of the fundamental purposes of sentencing in our criminal jurisprudence ... is deterrence. Whether you can be deterred by virtue of a sentence or incarceration, I don't know, but I do know this: that sentences of incarceration to jail, together with fines, is said, by virtue of our history not only in this country but in England, to be a deterrent to others against commission of the same of similar offenses. [29]

Now, I think there are some mitigating circumstances in your case. I don't hold it against you or any of your co-defendants for exercising your rights ~ to the extent that those rights are consistent with law under the First Amendment. (But a)s ... Justice Brandeis once said, you can't yell "fire" in a theater."

L . A FOOL FOR A LAWYER?

Quite possible, the Record certainly makes a strong arguement that plaintiff

[29 Immediately after, the Court also sentenced Ellen Thomas, Sunrise Harmony, and Philip Joseph to terms in prision, reminding each of them: "regardless of your motivation ... as a deterrence to others against committing the same or similar offenses in the future that you be incarcerated." ]

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has, indeed, represented "gibberish." E.g., Thomas v. News World Communications, 681 F. Supp.51, 63

Some of plaintiff's associates have even credited him with being the "man who single-handely destroyed the First Amendment." [30]

It might seem ironic that Justice Roberts spent the preponderence of his time preserving system law, which protects the crisis situation he decried, while plaintiff, and as evidenced by the records of this court, has made a consistant effort to dedicate his time, as best he can preceive, to live what Justice Roberts talked about, was sent to jail by this Court for "yelling fire"

It appears, I've been saying the government', through its' agents, has been persecuting me for years&, and, I sincerely believe, that although\ we've exchanged reams of paper the courts haven't looked at any of the facts. (supra, footnote 27)

Furthermore, for years it seems as if I've been clainming that the government "has pursued a policy intended to prohibit demonstrations and protests in Lafayette Park 'on an incremental basis;." Thomas v U.S., 696 F. Supp.702, 705. (supra, footnote 28).

It seems I shouldn't have to admit this (because I'm the plaintiff in this case), but I might be crazy. [31]

Assuming my allegations are true, and the Court should certainly take some

[30 For the Record plaintiff, doesn't feel he deserves that title, crediting instead many well interntioned, ideologically deceived zealots of little understanding, who merit that recognition as being literally "responsible" for writing "bad law." Elg., Community for Creative Non-Violence v Watt, 730 F2d 588, 601, 605. ]
[31 Not that I've ever tried to deny the possibility. Pl's Exhibit 28, pg. 7, lines 12-25..]

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action if my allegations are not true, it seems my arrest on May 26th is not much different thatn a well organized kidnapping. If the judicial system is to condone "short term" police implimented kidnapping and/or incarceration of preceived dissidents, it would seem that the public is entitled to know where Courts will it draw the line to safeguard the "chief distinctions that sets us apart form totalitarian regimes?" Can one be held for twenty-four hours, thirty-six, seventy-two? Would a dissent enforcement officer be authorized to transport a dissenter across state lines?

If an officer says, "move your sign "just a few feet" to the east (or west, or whatever) how often must one comply with the order, before one is incrementally removed from the Park?

Foolishly or not, plaintiff, in the name of judicial balance and due process and the orderly functioning of democracy, once again implores this Court to conduct as objective an inquiry as humanly possible into the factual issues underlying this current phase of this "ongoing confrontation arising from plaintiff's exercise of First Amedment rights." Thomas, et al v. United States et al, 696 F. Supp 702, 704

IV. CONCLUSION

It is not for the Court at this stage to determine credibility as to where the truth lies. It is sufficient to conclude that plaintiff has stated a claim and appellate precedent requires a trial because there are material issues of fact in dispute, Therefore the Court should deny the respective parties pending Motions to Dismiss or Alternatively for Summary Judgment.

Respectfully submitted this 19th day of July, 1995.

______________________
William Thomas
2817 11th Street N.W.
Washington, D.C. 20005
202-462-0757