ONE FINAL POINT WITH REGARD TO WHAT MR. THOMAS SAID
HERE THIS MORNING IS HE HAS HE STATED THAT CONCEPCION
PICCIOTTO HASN'T SLEPT SINCE 1982. THIS IS SIMILAR TO STATE
17
MENTS THAT HE MADE IN VARIOUS OF HIS CRIMINAL CASES, MOST
RECENTLY IN THE ONE THAT WAS AFFIRMED BY THE COURT OF APPEALS,
JUDGE FLANNERY'S CONVICTION. THE COURT OF APPEALS, DURING ORAL
ARGUMENT, EXPRESSED A GREAT DEAL OF SKEPTICISM THAT SOMEONE
COULD IN FACT BE IN THE PARK CONTINUOUSLY SINCE 1982 AND NOT
SLEEP; IT'S JUST NOT HUMANLY POSSIBLE.
THE FACT OF THE MATTER IS THESE PEOPLE HAVE CONTINUALLY
RESIDED FOR ALL INTENTS AND PURPOSES IN LAFAYETTE PARK SINCE
1981, AND THE CONFLUENCE OF THAT CONTINUAL PRESENCE WITH THESE
FEDERAL REGULATIONS BRINGS US HERE TODAY, AS IT HAS IN VARIOUS
CRIMINAL AND CIVIL PROCEEDINGS IN THE PAST.
TURNING TO OUR MOTION TO DISMISS, I WILL JUST TOUCH
BRIEFLY ON THE VARIOUS ARGUMENTS WE MAKE. IT'S NOT CLEAR TO ME
NOW, BASED ON WHAT MR. THOMAS HAS SAID THIS MORNING OR BASED ON
WHAT HE FILED ON FRIDAY, WHAT EXACTLY THE FOCUS OF HIS
COMPLAINTS IS. OF COURSE, WHEN WE WERE MOVING TO DISMISS, WE
TRIED TO TAKE THE BROADEST POSSIBLE INTERPRETATION BECAUSE I
DON'T THINK THE COMPLAINTS ARE VERY CLEAR, SO WE TRIED TO COVER
EVERY BASE POSSIBLE.
HE ALLUDED IN HIS MATERIALS THAT HE HAS NOW WITHDRAWN,
AND I DON'T KNOW IF HE'S CHANGED HIS POSITION, THAT THEY WERE
NOT ALLEGING ANY COMMON LAW TORT CLAIMS. IT SEEMS TO ME, BASED
ON THE COMPLAINT, THAT IT WAS REASONABLE FOR US TO ASSUME THAT
THERE WERE COMMON LAW TORT CLAIMS: ASSAULT, BATTERY,
DEFAMATION, ETC. WE HAVE ASSERTED IN OUR MOTION TO DISMISS, AND
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IT HAS GONE UNCHALLENGED BY MR. THOMAS, THAT IN LIGHT OF THE
RECENT AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT, IT'S CLEAR
THAT THE UNITED STATES IS THE ONLY PROPER DEFENDANT FOR THESE
COMMON LAW TORT CLAIMS, AND HE'S NOT EXHAUSTED HIS
ADMINISTRATIVE REMEDIES. SO INSOFAR AS THERE ARE COMMON LAW
TORT CLAIMS ASSERTED, I BELIEVE THAT YOU HAVE TO AS A MATTER OF
LAW DISMISS THOSE CLAIMS.
MR. THOMAS HAS ALSO FAILED TO MEET THE HEIGHTENED
PLEADING STANDARD. AS YOUR HONOR KNOWS, THERE ARE SOMEWHERE IN
THE NEIGHBORHOOD OF 15 TO 20 FEDERAL DEFENDANTS IN THIS CASE.
ALMOST EVERY ONE IS JUST MENTIONED AS A DEFENDANT, WITH NO FACTS
AT ALL TO TIE HIM TO THE ALLEGATIONS OF THIS CASE, LET ALONE
MEETING THE HEIGHTENED PLEADING STANDARD THAT'S BEEN SET FORTH
IN THE VARIOUS CASES OF THIS CIRCUIT, PARTICULARLY MARTIN VERSUS
MALHOYT, MARTIN VERSUS D. C. POLICE, AND HOBSON VERSUS WILSON.
AND JUDGE OBERDORFER RELIED SPECIFICALLY ON THIS RATIONALE IN
REJECTING THE CLAIMS AGAINST VARIOUS FEDERAL OFFICIALS IN HIS
DISMISSAL OF THE TWO EARLIER CIVIL THOMAS CASES THAT WE'VE
REFERRED IN OUR BRIEF. HE SIMPLY MR. THOMAS SIMPLY FAILS TO
MEET THE HEIGHTENED PLEADING STANDARD.
HE ALSO FAILS T0 MEET THE VARIOUS SECTIONS OF 42 U.S.C.
THAT HE CITES TO IN THIS CASE, PARTICULARLY 42 U.S.C. 1985,
SECTION 3, 1986, AND 1983.
THE 1985, SECTION 3 CLAIM IS BASICALLY A CONSPIRACY
CLAIM AS I READ IT, AND THIS REALLY TIES BACK INTO THE
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HEIGHTENED PLEADING STANDARD THAT I'VE ALREADY DISCUSSED. MR.
THOMAS DOES NOT DEMONSTRATE A CONSPIRACY. JUDGE OBERDORFER
SPECIFICALLY REJECTED THE CONSPIRACY CLAIM BASED ON THE SAME
ALLEGATIONS THAT MR. THOMAS IS MAKING IN THIS CASE THAT HE MADE
IN THE EARLIER THOMAS CASES.
HE CANNOT STATE A 1986 CLAIM IN THIS CASE EITHER,
BECAUSE AS WE POINTED OUT IN OUR BRIEF, AND AGAIN AS JUDGE
OBERDORFER FOUND, YOU CANNOT STATE A 1986 CLAIM UNLESS THERE HAS
BEEN A VIOLATION OF 1985, SECTION 3 FOUND.
AND HE CANNOT STATE A 1983 CLAIM AGAINST THE FEDERAL
DEFENDANTS BECAUSE 1983 APPLIES ONLY TO THE STATES. THERE IS A
LINE OF CASE LAW THAT SAYS 1983 CAN APPLY TO FEDERAL OFFICIALS
WHEN THEY'RE ACTING IN A LOCAL CAPACITY. HOWEVER, THAT DOES NOT
APPLY HERE BECAUSE THERE'S NO DISPUTE THAT AT ALL TIMES THE
FEDERAL DEFENDANTS WERE INVOKING AND RELYING UPON FEDERAL
REGULATIONS, SO THERE CANNOT POSSIBLY IN THIS CASE BE A CLAIM
THAT THEY WERE ACTING IN A LOCAL CAPACITY.
THE PLAINTIFFS ALSO SUE THE PRESIDENT. BRIEFLY, WE
STATE IN OUR BRIEF THAT YOU CAN'T SUE THE PRESIDENT IF RELIEF
CAN BE OBTAINED FROM OTHER DEFENDANTS. MR. THOMAS HAS NOT
RESPONDED TO THAT, AS I READ HIS SUBMISSIONS ON FRIDAY.
WE ALSO EXPLAIN OUR POSITION ON LACK OF PERSONAL
JURISDICTION. I DON'T KNOW AT THIS POINT IF ANY ADDITIONAL
PEOPLE HAVE BEEN SERVED PURSUANT TO YOUR HONOR'S ORDER THAT
INDIVIDUAL DEFENDANTS BE SERVED OTHER THAN THE ONES THAT WE HAVE
20
IDENTIFIED IN OUR MOTION THAT HAD BEEN SERVED. I WILL NOTE,
HOWEVER, THAT I DON'T BELIEVE THAT SHOULD HALT THE COURT FROM
TAKING ANY ACTION IN THIS CASE ONE WAY OR THE OTHER BECAUSE OF
THE VARIETY OF OTHER ARGUMENTS THAT WE RELY UPON AS A BASIS FOR
YOU TO DISMISS THIS CASE.
NEXT, WE ARGUE THAT MUCH OF THIS CASE, INDEED ALMOST
ALL OF IT, IS BARRED BY THE STATUTE OF LIMITATIONS. DEPENDING
ON WHICH CLAIM YOU LOOK TO, YOU HAVE EITHER A THREE YEAR, A TWO
YEAR OR A ONE YEAR STATUTE OF LIMITATIONS APPLYING, AND WE
SPELL THAT OUT A LITTLE BIT IN OUR BRIEF. THE THREE YEAR WOULD
APPLY TO TORTS THAT ARE NOT SPECIFICALLY COVERED BY THE D. C.
STATUTE; THE ONE YEAR WOULD APPLY TO CLAIMS LIKE FALSE ARREST,
FALSE IMPRISONMENT; THE TWO YEAR WOULD APPLY TO ANY OF THE FTCA
CLAIMS. BASICALLY, THIS ENTIRE CASE SEEMS TO FALL ALMOST
ENTIRELY OUTSIDE OF ANY OF THE ONE , TWO OR THREE YEAR STATUTES
OF LIMITATIONS, AND IT SEEMS TO ME YOU CAN DISMISS THE CASE ON
THAT BASIS.
BRIEFLY, WE ALSO ARGUE THAT THE VARIOUS FEDERAL
DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY. MR. THOMAS
ASSERTED ALMOST NO_RESPONSE TO THAT IN HIS SUBMISSIONS FRIDAY.
I DON'T KNOW IF HE'S NOW AMENDED THAT IN HIS NEW SUBMISSIONS,
SINCE I HAVEN'T SEEN THEM. BUT IT SEEMS TO US THAT HE HAS
MANIFESTLY FAILED TO DEMONSTRATE HOW ANY OF THESE DEFENDANTS
VIOLATED ANY OF THE PLAINTIFFS' CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHTS OR WHICH THEY SHOULD HAVE REASONABLY
21
KNOWN.
THE LAST TWO POINTS THAT WE DISCUSS IN OUR BRIEF RELATE
TO THE CONSTITUTIONALITY OF THE REGULATIONS AS THEY APPLY TO
LAFAYETTE PARK AND THE WHITE HOUSE SIDEWALK, IT IS NOT CLEAR TO
ME, AND IT HAS NEVER BEEN COMPLETELY CLEAR TO ME, WHAT EXACTLY
MR. THOMAS IS ASSERTING WITH REGARD. TO THOSE. IT'S CLEAR BEYOND
PERADVENTURE NOW THAT THOSE REGULATIONS ARE CONSTITUTIONAL. THE
SUPREME COURT. OUR COURT OF APPEALS, AND VARIOUS JUDGES OF THIS
COURT HAVE EXAMINED IN SOME DETAIL AND AT SOME LENGTH VARIOUS
ASPECTS OF THE REGULATION, AND TO MY KNOWLEDGE, THE ONLY
REJECTION OF ANY OF THE REGULATION WAS MADE BY YOUR HONOR, AGAIN
IN THE CRIMINAL CASE THAT MR. THOMAS REFERRED TO, WHERE, AS I
UNDERSTAND IT, YOUR HONOR FOUND THAT THE REGULATION WAS VAGUE
INSOFAR AS THE TERM "STRUCTURE" WAS DEFINED. THAT PROBLEM HAS
NOW BEEN CLARIFIED, HAS BEEN CLARIFIED FOR THE LAST TWO OR THREE
YEARS, IN THE REGULATIONS AS THEY CURRENTLY STAND IN THE
C.F.R., "STRUCTURE" IS SPECIFICALLY DEFINED.
IF MR. THOMAS IS ASSERTING AS ONE COULD, I THINK,
REASONABLY CONCLUDE, THAT THE REGULATIONS ARE UNCONSTITUTIONAL
OR THAT THEY WERE PROMULGATED IN SOME UNCONSTITUTIONAL MANNER, I
THINK THAT'S JUST CLEARLY WRONG. AND I HAVE YET TO SEE ANYTHING
SUBMITTED BY HIM IN THIS OR ANY OF HIS EARLIER CASES WHICH WOULD
DEMONSTRATE TO THE CONTRARY. AND INDEED, NO JUDGE THAT I'M
AWARE OF HAS EVER FOUND IN A MANNER THAT SUPPORTS MR. THOMAS'S
OR THE OTHER PLAINTIFFS' ASSERTIONS.
22
FINALLY, MR. THOMAS ARGUES EXCUSE ME. THE
PLAINTIFFS ARGUE, AS I READ IT AGAIN, THAT THERE IS SOME SORT OF
SELECTIVE PROSECUTION OR EQUAL PROTECTION PROBLEM WITH THE
INAUGURATION COMMITTEE’S CONSTRUCTION OF VARIOUS ITEMS TN
LAFAYETTE PARK AS OPPOSED TO THINGS THAT THE PLAINTIFFS HAVE NOT
BEEN ALLOWED TO DO. I THINK UNITED STATES VERSUS GRACE IS
DISPOSITIVE OF THIS.
THE STATUTE CITED IN OUR BRIEF, AS WELL AS THE
REGULATIONS; SPECIFICALLY PROVIDE FOR THE VARIOUS ACTIVITIES OF
THE INAUGURAL COMMITTEE THAT WOULD NOT NORMALLY BE ALLOWED BY
OTHER DEMONSTRATORS OR OTHER PEOPLE. AND THE REASON FOR THIS IS
THAT THE CONGRESS AND THE SECRETARY OF INTERIOR HAVE
SPECIFICALLY FOUND THAT THE INAUGURATION IS A NATIONAL CELEBRATORY EVENT THAT COMES ONCE EVERY FOUR YEARS AND THAT FOR THAT
REASON, VARIOUS THINGS CAN TAKE PLACE IN LAFAYETTE PARK THAT
MIGHT NOT OTHERWISE BE PERMITTED. AND THE REGULATIONS AND THE
STATUTE SPECIFICALLY PROVIDE FOR THAT. THE COURT OF APPEALS
SPECIFICALLY FOUND THAT THAT WAS CONSTITUTIONAL IN THE GRACE
CASE, WHICH WE'VE CITED IN OUR BRIEF.
IN THE EARLIER GRACE CASE, THE DEFENDANT IT WAS A
CRIMINAL CASE HAD ASSERTED THAT THE REGULATION WHICH
PROHIBITED STANDING IN THE CENTER ZONE OF THE WHITE HOUSE
SIDEWALK WITH A SIGN WAS UNCONSTITUTIONAL BECAUSE SHE HAD BEEN
PROSECUTED FOR VIOLATING THAT REGULATION BUT YET THE
INAUGURATION COMMITTEE, WHO HAD PUT THE PRESIDENTIAL SEAL IN THE
23
CENTER ZONE OF THE WHITE HOUSE SIDEWALK, HAD NOT BEEN
PROSECUTED. AND THE COURT OF APPEALS FLATLY REJECTED ANY SORT
OF EQUAL PROTECTION, SELECTIVE ENFORCEMENT ARGUMENT. I THINK
THE SAME THING APPLIES HERE.
AS THE ADMINISTRATIVE RECORD FOR THE LAFAYETTE PARK AND
EARLIER PARTS OF THE REGULATION DEMONSTRATE, ONE OF THE
RATIONALES FOR THE REGULATION WAS TO FOR AESTHETICS AND TO
MINIMIZE THE HARM THAT WAS CAUSED BY VARIOUS PROTESTERS OR
VARIOUS OTHER PERSONS OR COMPANIES OR WHATEVER IN LAFAYETTE PARK
BY A CONTINUAL PRESENCE, AND THAT HAS BEEN CLARIFIED IN THIS
CASE. IT'S BEEN TAKEN CARE OF INSOFAR AS THE INAUGURATION
COMMITTEE MIGHT CAUSE DAMAGES BECAUSE THEY HAVE POSTED A $50,000
LETTER OF CREDIT WITH THE DEPARTMENT OF INTERIOR. SO THAT IF
THE PLAINTIFFS' CONCERN IS THAT THEY ARE NOT HARMING THE PARK
BUT THE INAUGURAL COMMITTEE MIGHT, THE INAUGURAL COMMITTEE HAS,
PURSUANT 10 ITS PERMIT THAT'S BEEN GRANTED BY THE SECRETARY OF
INTERIOR, PUT UP A SUBSTANTIAL SUM OF MONEY TO COVER ANY OF
THOSE SORT OF PROBLEMS.
AND INDEED, NOTWITHSTANDING ALL OF THIS, THE PLAINTIFFS
STILL HAVE AVAILABLE TO THEM ONE QUADRANT OF LAFAYETTE PARK IN
WHICH THEY CAN CONTINUE TO MAINTAIN THEIR VIGIL. THEY HAVE BEEN
ADVISED OF THAT. IT'S POINTED OUT IN OUR PAPERS THAT THROUGHOUT
THE INAUGURAL FESTIVITIES, THEY ARE NOT BEING KICKED OUT OF
LAFAYETTE PARK. THEY CAN CONTINUE TO MAINTAIN THEIR VIGIL IN
ONE QUADRANT OF THE PARK. BUT WE'RE SIMPLY SAYING THAT IT WAS
24
CONSTITUTIONAL FOR THE SECRETARY OF THE INTERIOR TO DO WHAT HE
DID IN TERMS OF GRANTING A PERMIT TO THE INAUGURATION COMMITTEE,
AND WE BELIEVE THAT THAT IS CLEARLY WARRANTED BY THE CASE LAW
AND THE STATUTE AND REGULATIONS.
UNLESS THE COURT HAS ANY FURTHER QUESTIONS, THAT WILL
CONCLUDE MY ARGUMENT FOR THIS MORNING.
THE COURT: THANK YOU, MR. MARTINEZ.
MR. BURGER.
MR. BURGER: GOOD MORNING, YOUR HONOR. IF IT PLEASE
THE COURT.
AS WE POINT OUT IN THE DISTRICT OF COLUMBIA'S MOTION,
DISTRICT OF COLUMBIA WAS NOT AN INITIAL DEFENDANT IN THE INITIAL
COMPLAINT, BUT DID FIND ITSELF AS A DEFENDANT IN THE SECOND
AMENDED COMPLAINT. THE ONLY ALLEGATIONS WITH RESPECT TO
DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA DEFENDANTS, RELATE TO
MARCH OF 1983, A PERIOD APPROXIMATELY FIVE AND A HALF YEARS
PRIOR TO THE FILING OF THIS LAWSUIT.
THE ARREST OF MR. THOMAS BY D. C. CAPTAIN CANFIELD TOOK
PLACE IN MARCH OF 1983, WHEN MR. THOMAS BURNED DOWN THIS A FRAME
SIGN STRUCTURE, AND HE WAS CONVICTED FOR THAT; HE WAS CONVICTED
FOR DESTRUCTION OF PROPERTY. AND THE FIRE ACTUALLY CAUSED
APPROXIMATELY $5,000 WORTH OF DAMAGE TO THE FENCE AREA.
OF COURSE, A CONVICTION, UNDER MCCLAIN VERSUS BARRY,
WOULD PRECLUDE A CLAIM OF FALSE ARREST FOR THE UNDERLYING
OFFENSE. BUT MOST CLEARLY, FROM THE DISTRICT OF COLUMBIA POINT
25
OF VIEW, THERE'S A STATUTE OF LIMITATIONS BAR TO THIS CLAIM.
THERE IS NO ALLEGATION THAT THERE WAS ANY INVOLVEMENT BY THE
DISTRICT OF COLUMBIA SUBSEQUENT TO THE PERIOD IN MARCH OF 1983.
FURTHER, YOUR HONOR, WE ATTACHED TO OUR MOTION THE
18 PAGE REPORT AND RECOMMENDATION OF MAGISTRATE BURNETT IN
WHICH HE ASSESSED VERY CAREFULLY, AFTER TEN DEPOSITIONS WHICH HE
HIMSELF PRESIDED OVER, THAT THERE WAS NO VIOLATION OF MR.
THOMAS'S CONSTITUTIONAL RIGHTS BY CAPTAIN CANFIELD.
AND WE FURTHER ARGUE, YOUR HONOR, THAT WITH THE
DISTRICT OF COLUMBIA BEING THE ONLY DEFENDANT, CAPTAIN CANFIELD
NOT HAVING BEEN SERVED, THERE WOULD ALSO BE THE MONELL ARGUMENT
FOR THE DISTRICT OF COLUMBIA.
THANK YOU, YOUR HONOR.
THE COURT: MR. THOMAS.
MR. THOMAS: YOUR HONOR, I THINK THAT THIS PROBABLY
MIGHT MAKE WHAT I'M TRYING TO SAY CLEAR ABOUT THE FACTS. I FIND
IT ABSOLUTELY INCREDIBLE THAT THE GOVERNMENT CAN SAY WHAT IT
SAID WITH RELATION TO MAGISTRATE BURNETT'S CONDUCT OF THE
DEPOSITIONS. ALTHOUGH THE GOVERNMENT IS RELYING VERY HEAVILY ON
THAT CASE, AND ALTHOUGH MR. MARTINEZ IN HIS OPPOSITION TO THE
MOTION TO STRIKE SAYS THAT EXHIBIT 4 WAS AI HE CLAIMS, CORRECTED
VERSION OF AN APPENDIX THAT WAS ATTACHED TO ONE OF MAGISTRATE
BURNETT’S OPINIONS, HE HAS FOR SOME REASON NOT SUBMITTED THIS
OPINION. AND THIS OPINION, WHICH LET ME JUST TAKE OUT OF THE
APPENDIX. BECAUSE THIS I WOULD LIKE THE COURT TO READ BEFORE IT
26
READS ANY OF MY FILINGS. THIS OPINION SUGGESTS THAT THIS CASE
MUST GO TO TRIAL.
THE COURT: THIS OPINION IS MAGISTRATE BURNETT'S
OPINION?
MR. THOMAS: THAT IS MAGISTRATE BURNETT'S OPINION.
MAGISTRATE BURNETT ISSUED SEVERAL OPINIONS. THIS IS THE OPINION
THAT NONE OF THE DEFENDANTS HAVE BROUGHT INTO EVIDENCE, AND THIS
IS THE ONE THAT
THE COURT: WHAT IS THE DATE OF THAT ONE?
MR. THOMAS: THIS IS JANUARY 13TH, 1987. AND
MAGISTRATE BURNETT GIVES, I THINK, IN HIS OPINION THE COURT
WILL TO DECIDE FOR ITSELF, BUT I THINK MAGISTRATE BURNETT'S
OPINION GIVES A MUCH DIFFERENT SLANT ON WHETHER OR NOT THERE IS
SOME BASIS, SOME SUBSTANCE TO OUR COMPLAINTS.
THE COURT: WAS THAT A FINAL OPINION OF MAGISTRATE
BURNETT, OR WAS THAT AN INTERMEDIARY, INTERLOCUTORY OPINION?
MR. THOMAS: WHAT HAPPENED WAS THAT ON JUNE 6 OF 1986,
JUDGE OBERDORFER ISSUED A PRETRIAL MEMORANDUM WHERE HE DIRECTED
MAGISTRATE BURNETT, PURSUANT TO TITLE 28, TO CONDUCT THE
DEPOSITIONS AND SUPERVISE THE DEPOSITIONS IN THE CASE. AS A
RESULT OF THAT, HE LISTENED TO TEN GOVERNMENT WITNESSES. THE
GOVERNMENT DIDN'T TAKE ANY DEPOSITIONS OF US, SO OUR SIDE OF THE
STORY DIDN'T REALLY GET INTO THE RECORD. BUT I THINK THAT THE
MAGISTRATE MAKES A STRONG CASE IN SUPPORT OF US AND THAT THESE
FACTS THAT WE ALLEGE DO NEED SOME FURTHER INVESTIGATION.
27
THE COURT: LET ME ASK AGAIN: WAS THAT A FINAL OPINION
OF ALL THE OPINIONS THAT MAGISTRATE BURNETT MAY HAVE WRITTEN
DURING THE COURSE OF HIS
MR. THOMAS: THIS WAS HIS BOTTOM LINE, YES. THIS WAS
HIS LAST ONE.
THE COURT: THAT WAS HIS BOTTOM LINE, THE JANUARY 13,
1987 OPINION.
MR. THOMAS: RIGHT.
THE COURT: ALL RIGHT.
MR. MARTINEZ: YOUR HONOR
THE COURT: WE'LL HEAR FROM YOU IN A MOMENT, MR.
MARTINEZ.
YES, SIR.