Plaintiffs Motion for Reconsideration

UNITED STATES DISTRICT COURT
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.    |      
      Defendants.             | 

PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 31, 1995 ORDER

1. PRELIMINARY STATEMENT

In consistent and responsible service to the premise that the judicial system should consider equally the representations of both the powerful and the powerless, plaintiff hereby moves for reconsideration of the Court's Order, entered August 31, 1995, which granted Defendants' Motion for Summary Judgment, and denied plaintiff's Motions for Consolidation, and Judicial Notice of Exhibits.

A. DOES THE COURT UNDERSTAND WHAT PLAINTIFF IS TRYING TO SAY?

I initially claimed,

"In apparent compliance with the provisions of 42 USC 4321 (or, perhaps, some other similar provision of law), and consistent with a project which threatens such monumental impacts on "harmony between man and his environment" of freedom and democracy, the Executive Committee scheduled an Environmental Impact Statement to be completed 1996." Amended Complaint, 13, see also, id. 10-12.

The Executive Committee Comprehensive Design Plan for the White House and President's Park identifies Lafayette Park as "the symbol of our free and democratic nation," and "the symbol of openness in government." Amend Complaint, Exhibit 1.

The Court just found,

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"(P)laintiff does not specify any adverse environmental impacts that the traffic restrictions have or will have on him." Court's Memo, pg. 11.

The fact that an Environmental Impact Study had been scheduled, but was preempted by defendants sudden action should be sufficient to indicate that such a study was merited. With all due respect, unless the Court missed these allegations, it seems as if the Court doesn't understand the environment impact on democracy that would accrue from transforming Lafayette Square into Red, or Tiennamen Square, neither of which are surrounded by barricades.

Really, this is nothing new.

"For instance, in a "Position Paper' dated July 24, 1967, the Secret Service stated its strong belief:
"'that the continuation of picketing and demonstrating by protest groups in front of the White House constitutes a threat to the safety of the President of the United States and that this activity should not be permitted.'
"(Plaintiff's exhibit 18, PLA at Tab 23). Of course it is understandable that those charged with Presidential safety would prefer, as Judge Hart put it, to take 'the precautions of a dictator' to shield him (or the White House complex) from danger. (Finding 23), A Quaker Action Group v. Morton, Civil Action No. 688-69 (DDC August 22, 1973). This, of course, is simply not possible in a democracy, for the President cannot be kept in a steel room away from the public. We would observe, however, that the President probably faces far fewer risks from even the largest demonstration at the White House than when he moves in a parade or visits a baseball stadium or makes any sort of public appearance. This observation is supported by testimony from the Assistant Director for Protective Intelligence for the Secret Service who rated the White House as virtually the safest place for the President. (Tr. at 164)." A Quaker Action Group v. Morton, 516 F.2d 717, ftn. 40 (1975)(parentheses in original).

Problem is that defendants are just finding it easier to get away with it.

A. SHOULD THE COURT ACCEPT THE WHITE HOUSE SECURITY REVIEW WITHOUT QUESTION?

Although the Court should refrain from second guessing the expertise of the

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agency, I do not think this means that the Court must accept everything the government says as true.

"(T)he Court notes that the barriers around the Park allow pedestrian entry and that the Review specifically determined that '[t]here is significant evidence that this plan should significantly enhance the accessibility of the White House to visitors.' Background Information at 45-46" Court's Memo, pg. 11 emphasis added by the Court.

Whether or not "barriers around the Park" are actually likely to "enhance the accessibility of the White House to visitors," seems a question of fact.

The Court found:

"On September 12, 1994, at 1:49 a.m., a small airplane crashed onto the South Lawn of the White House, killing the pilot but injuring no one else. See Background Information on the White House Security Review at 1 (May 1995) (`Background Information") In order to avoid such threats to the national security in the future, then-Secretary of the Treasury Lloyd Bentsen ordered the formation of a White House Security Review (the `Review") to examine the feasibility of techniques and measures to safeguard the White House Complex from air and ground assaults. Id. at 3.

"Shortly thereafter, Francisco Martin Duran fired twenty-nine rounds from a semi-automatic assault rifle into the White House. ;LB,at 2. Subsequently, four additional security breaches at the White House were reported during the pendency of the Review, although none posed a serious threat to the President. Id. at 4.

" After an exhaustive investigation, the Review reported that it was not able to identify any alternative to prohibiting vehicular traffic on Pennsylvania Avenue that would ensure the protection of the President and others in the White House Complex from explosive devices carried by vehicles near the perimeter. "

Neither the plane crash, nor the shooting incident would be prevented from reoccurring by the closing of Pennsylvania Avenue or the barriers around the Park.

Plainly the bulk of the White House Security Review that is available to us is

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historical. [1] Most of that history served as the basis of the government's First Amendment incursions accomplished in White House Vigil for the ERA v. Clark, 746 F.2d 1518, which, we can see, was allegedly prompted by,

"A bomb in front of the American Embassy in Beruit, Lebanon, (which) killed scores of people in the beginning of April (1983). (And c)loser to home in April (1983) a bomb exploded in front of the War College at Fort McNair in Washington." Federal Register, June 17, 1983, Vol. 48, No 118, pg 28058 (parentheses added).

If the Court's opinion in this case stands for the proposition that anytime officials feel an excessive preoccupation with security they are free to do whatever they like, plaintiff suggests that opinion runs contrary to previous opinions.

"Of course, the health and safety of the President are of concern to the citizenry. But this only poses, it does not answer, the question as to whether the officials involved have transformed this concern into an excessive preoccupation with security that is achieved at the unnecessary expense of First Amendment freedoms. We are aware that the issue is difficult and delicate. It is too difficult, too delicate, too dependent on careful assessment and weighing of constitutional rights, to rest conclusively on the untested declaration of an executive official." A Quaker Action Group v. Morton, 516 F.2d 717, 723, citing, Quaker Action III, 460 FR.2d at 459.

There are other problems that suggest the White House Security Review is not infallible. If the Court is interested I will gladly go into them.

A. SHOULD THE COURT CONSIDER PLAINTIFF'S MOTION FOR JUDICIAL NOTICE OF EXHIBITS MOOT?

At the TRO hearing in this case, Captain Radzilowski testified to the need


[1 An interesting historical footnote supplied by the White House Security Review is the fact that the Secret Service has consistently been "exceeding its mandate" since its inception. E.g., WHSR, pgs. 71, 73, 74 and 76. A fact which the S.S. seems to flaunt.
"'When such laws begin to operate in this Republic the liberties of the people will take wings and fly away.' House Committee on the Judiciary, 57th Cong. 1st Session, H. Rep. 1422, 13(sic) (1902)." Id., pg. 75.]

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for insuring that "emergency vehicles" not be obstructed, and that there was no intention to impede First Amendment activity in the closed section of Pennsylvania Avenue. The Court relies heavily upon the testimony of Captain Radzilowski's testimony to grant defendants' motions for summary judgment. Court's Memo, pgs. 13-20.

I believe that the materials offered as evidence in Plaintiff's Motion for Judicial Notice cast doubt on the accuracy and/or veracity of Captain Radzilowski's testimony about traffic access on Pennsylvania Avenue (video tape 3m48s-6m32s), interference with First Amendment activity (8m 58s) and the arrest itself (8m38s-12m55s).

I suggest that it is an error for the Court to consider that evidence moot.

CONSOLIDATION

I believe that the Court was mistaken to deny my Motion for Consolidation.

The fact that the United States is defendant in both cases, and both cases involve my continuous presence and one specific sign is certainly a strong indication of a relationship between the two cases.

Additionally, by separating the two cases it seems as if the Court has come up with opinions that are not entirely consistent. In the instant case the Court found that,

"(T)he regulation leaves alternative channels of communication open to the Plaintiff. The Plaintiff maintains his presence in Lafayette Park. He is not prohibited from displaying his sign and seat structure there....." Court's Memorandum (August 31, 1995), pg. 16.

To the extent I should not be prohibited from displaying my "sign and seat structure" (as the Court chooses to characterize it) in Lafayette Park, I agree. However, in United States v. Thomas, CA. No. 95-2747 the Court has intimated that I would not be

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permitted to display the sign (as I believe it should be correctly characterized, according to the Lafayette Park regulations) at that location.

"(G)iven the Officers' plain statutory authority for warning the Plaintiffs regarding the use of their sign in the Park, the Court finds that the Plaintiffs have not established that a clear right was implicated by the Officers' actions, nor have the Plaintiffs shown with sufficient specificity that the Officers acted unreasonably in this respect. Therefore, the Court holds that the Officers are entitled to qualified immunity regarding this factual claim." Thomas, et al v. United States, et al, Court's Memorandum (April 12, 1995), pg. 15.

A. IS THE COURT PREDISPOSED?

Essentially, I believe, judicial predisposition accounts for the Court's decision in this case, and the fact that I, and others, have been denied a fair hearing of the facts in this and other cases.

"The Plaintiff in this action, William Thomas, is no stranger to the Court. Mr. Thomas proclaims that, '[s]ince 1981 in the exercise of his religious beliefs [, he] has regularly maintained a continuous presence on the White House sidewalk and southern part of Lafayette Park for the purpose of communicating on issues of peace and social justice.' Amended Complaint at 3 '. Throughout the period he has been conducting his vigil, the Plaintiff has filed numerous claims with this Court that he has been 'arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities." Mem. in Support of Plaintiff's Opposition to Summ. Jud. at 24 n.15." Court's Memo (August 31, 1995), pg. 5, fan. 1.

I believe this indicates an error for two reasons. First, even though the Court recognizes my face, [2] the Court cannot pretend to have factually examined the more important aspects of my personality (as well as the driving force behind my "continuous presence") -- my ideas:


[2 I have been before your Honor so often that I can't help thinking the odds against such frequency are probably either astronomical, or beyond the provisions of Local Rule 403, et seq,]

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"The reason that I've been staying in one place is because there's one of two possibilities: either I have something of value for people to hear, or I'm crazy. [3] If I have something of value for people to hear, my experience leads me to believe that they can't take it in all at one sitting, and on numerous occasions I've had people who have stopped and talked to me and maybe even went away angry the first time, but they've come back later and said, 'I listened to what you said. I thought about it after I left, and I want to hear some more.' So I stay in one place, first, as a symbolic effort to show dedication, commitment; secondly, to be available if something that I say rings a chord in someone's heart or mind and they want to come back and talk some more." United States v. Thomas, Thomas, Harmony and Joseph, CR. No 87-0062, January 28, 1995, sentencing transcript, pg. 7 (Thomas v. United States, CA No. 94-2747, Third Motion for Sanctions, February 9, 1995, Exhibit 6).

Although the Court magnanimously presumed that I am not crazy (id. pg 8), before imposing a prison sentence the Court explained its action with the observation, "(A)s Justice Brandeis once said, you can't yell 'fire' in a theater." Id., pg 68.

I contend that I am not "yelling fire," and that it is a mistake for the Court to assume otherwise without first making a factual determination that my ideas are not practical approaches to "issues of broad (public) concern." Court's Memo, pg. 11.

Second, it is a mistake for the Court to proceed under the impression that plaintiff has filed numerous (presumably factually deficient) claims." Parentheses added.

Reasonable people have seen (1) there has been an "on-going conflict," for years, (2) I have alleged it is the result of a policy intended to prohibit demonstrations "on an incremental basis" (Thomas v. United States, 696 F. Supp; 702, 704, 705), and (3) the


[3 Even assuming I'm crazy, I'm neither a danger to myself or others. In either event, I believe reason can help show who is actually mistaken, and to what extent, thus helping everyone draw a step closer to "Peace through Understanding." (Thomas v News World Communications, 681 F. Supp. 55, 69).]

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obvious questions have never been addressed. [4]

"THE COURT: Let me ask you this ... hasn't it been one of those things there 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


[4 The Court cites, " Mem. in Support of Plaintiff's Opposition to Summ. Jud. at 24 n.15." As is readily seen from the actual quote, not my own, the allegations referred to by the Court are "undisputed." I.e.,

"Much of the evidence at trail was undisputed. Since June 1981, Thomas had been maintaining a vigil in front of the White House, expressing his opposition to nuclear weapons and mendacious politicians. During the period of his vigil, the regulations governing the display of signs and structures in front of the White House bad frequently changed. Thomas testified that he had attempted to accommodate the various revisions in the regulations in order to ensure that his protest remained lawful. He claimed that he had been repeatedly arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities. " United States v. Thomas, 557 A.2d 1296, 1297.

Moreover, aside from the provisions of the Rules of Procedure, this Court should be aware that was not the only time that a court presiding in criminal cases discerned potential significant questions relating to police agents and my expressive activities. E.g.,

"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." United States v. Thomas, Thomas, Thomas, et. al., USDC Cr. 84-0255, Transcript, September 16, 1984, pg. 1026 (Thomas v. United States, CA No. 94- 2747, Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing [March 20, 1995], Exhibit 3).

While it may be accurate to say, "plaintiff has filed numerous claims," it is an error to pretend that those claims have received serious judicial consideration, beyond the preliminary inquiries of Magistrate Arthur Burnett,

" there remains 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.... plaintiff is entitled to attempt to establish constitutional violations by individual U. S, Park Police officers, and by any Secret Service officers acting in concert therewith." (Thomas v. United States, CA No. 94-2747, Motion to Recuse (December 27, 1995), Exhibit 3, Magistrate's Memo, January 13, 1987, pgs. 11-17.

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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." [5]

Thomas v. United States, CA. No. 94-2747, Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing (March 20, 1995), Exhibit 2 (United States v. Thomas, USDC Cr. 83-0056, J. Bryant, July 7, 1983), pgs. 6 & 7.

Let us be honest. Not one of my numerous complaints has been resolved on the basis of a factual hearing. Nor has the government shown that even one (1) of my factual allegations was false. Instead, every one of my complaints (with the exception of Thomas v. Lujan, 721 F.2d 391, where the Court ignored claims of police misconduct, and dismissed the complaint on the separate Administrative Procedure Act claim), has been dismissed on the strength of "official immunity."

If the Court was interested in "develop(ing) ... evidence to the end that truth may be ascertained and proceedings may be justly determined" (Fed. R. Evid. 102), I believe it would not have given defendants the benefit of the doubt in every instance.

CONCLUSION

I hope the Court will reconsider these points.


[5 Sadly, since 1981 the government has dragged me into court many times, without exception the underlying criminal charges have stemmed from incidents directly relating to my continuous presence in Lafayette Park for the purpose of communicating on issues of broad public concern. At first the charges were just tossed out of court, then the government made new regulations, and, although the preponderance of criminal cases have been resolved in my favor, the government's record of convictions improved somewhat. Viewed in a light most favorable to me this record might indicate the degeneration of a reasonable and democratic nation, but it does not prove that my allegations are inaccurate, or that the government's arguments are based on truth.]

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Respectfully submitted this 11th day of September, 1995.

________________________________________
William Thomas, Plaintiff Pro se
2817 11th Street N.W., Apt. B
Washington, D.C. 20005
202-462-0757

CERTIFICATE OF SERVICE

I certify that, on this 11th day of September, 1995, copies of Plaintiff's Motion to Reconsider the Court's Order of August 31, 1995,, were served by first-class mail, addressed to: MARINA UTGOFF BRASWELL, Assistant United States Attorney, Judiciary Center Building -- Rm. 10-820, 555 4th Street, N.W., Washington, D.C. 20001, and BRUCE BRENNAN, Asst. Corporation Counsel, 441 4th Street NW , Suite 6-S-101, Washington, D.C. 20001.

William Thomas