THE COURT: Repeat your question because your tape was off
also.
Thomas: Does your letter to the Community for Creative
Non-Violence provide any indication as to why the arrests on
November 27 were made?
Fish: Yes, because we do not permit camping.
Thomas: And camping, is there an indication of what camping is
defined as in your letter?
Fish: Permit-- we do not permit camping primarily for living
accommodations in undesignated areas such as Lafayette Park.
Thomas: Does it, does the letter go on to make suggestions as to--
THE COURT: The letter can speak for itself. If you have any
specific questions about what happened to you and what he knows
about it, whether it was proper or not proper or somehow violated
your civil rights, ask him those questions, Mr. Thomas. I don't
want to take away questions for you, but at this point you're not
getting to the central issues involved. What's in the letter --
the Court can read the letter later on, if you're going to go ahead
and read the letters we're just going to excuse him. You can ask
him what he knows about it, what he knows about you, what happened
to you, let's get on with those kind of questions. That's what the
case is all about.
Thomas: Do you know what happened to me?
THE COURT: Does he even know you were arrested that day? I
don't--
Thomas: Did you know I was arrested that day?
Fish: I just read it on this piece of paper.
THE COURT: But before reading that piece of paper, did you
have any independent knowledge of Mr. Thomas at that time, or
anything about his arrest?
Fish: I don't recall, your Honor.
THE COURT: All right. What's your next question?
Thomas: So, am I to assume that you would have no responsibility
for deciding whether or not I would be arrested?
Martinez: Objection, your Honor, to the form of that question.
THE COURT: Well, let me rephrase the question for you. With
reference to who was arrested that particular day for violating the
camping regulations, did you have anything to do with that
decision, or was that made by the individual park policemen who
happened to be on the scene?
Fish: I would assume, your Honor, that it was made by the park
police. I--
THE COURT: You personally did not participate in the decision
who was arrested.
Fish: I don't recall that I did, no sir.
THE COURT: All right.
Thomas: From your letter of June 4, I believe it's Exhibit 12, did
you personally participate in the decision to make that arrest?
THE COURT: Just for the Court's orientation, Exhibit 12 refers
to an arrest when, what date and time?
Fish: It was a letter, your Honor, June 4, 1982, and it was "To
Whom It May Concern." If I recall, your Honor, it might have been
some camping that was, I'm not sure, but it may have been some
camping down in the Ellipse area, not in Lafayette Park.
THE COURT: That did not pertain to the people in Lafayette
Park or on the White House sidewalk?
Fish: If I recall, your Honor, I'm not sure about that.
THE COURT: Next question, Mr. Thomas. Just for the record, so
the record's clear, that IS a letter that you signed?
Fish: Yes, sir, it is.
THE COURT: Now, with reference to signing that letter, did you
prepare the letter or was it prepared by subordinates for your
signature?
Fish: It would have been prepared by subordinates and, and
assisted by our Solicitor's office.
THE COURT: And the direction "To Whom It May Concern," at that
point were the people in fact identified, or was that to be
determined later by subordinate officials or park policemen on the
scene?
Fish: Well, it would have been the latter, your Honor, because
obviously we wouldn't know who was there, so it would have been
addressed to whoever was camping.
THE COURT: And to whoever the park police felt it appropriate
to read the letter to at that point?
Fish: Yes.
THE COURT: And at that point in time you signed that letter,
did you know that Mr. Thomas was or was not potentially one of
those persons?
Fish: No, sir, I didn't.
THE COURT: All right, you may continue.
Thomas: So in fact when that letter was individ-- was delivered
"To Whom It May Concern" you actually had not made any
determination as to whether or not that individual was camping?
Fish: Well, as I recall, I may have been wrong, but there were
a number of individuals on the Ellipse.
Thomas: Well it -- does that mean that you just produced a
document, put your signature on it, and allowed it to be passed out
to whomever you -- you produced a document, you gave it to some
subordinates, and you allowed them to just pass it out and --
indiscriminately without you personally making any determination as
to whether or not the facts that, or the determination that you had
made was actually applicable to the individual who had received the
letter?
THE COURT: Do you understand the question?
Thomas: Did you understand the question?
THE COURT: Yeah, I think he could understand it.
Fish: Well, that would have been up to people that worked under
my office, and they have responsibility to work with our
Solicitor's office, so it would be incumbent on them to, to take
the proper action.
THE COURT: So you delegated to them, then, the responsibility
to determine whether the facts justified the application of this
letter.
Fish: That's exactly right.
THE COURT: All right.
Thomas: So, if I'm not mistaken-- (pause) (unclear)
Fish: Sure. Which one?
THE COURT: Number 12 I believe it's numbered, for the record.
Thomas: Number 12. "If you do not remove the structures you are
now using for living accommodation purposes in the area, you will
be subject to arrest." Is that correct?
Fish: That's what the letter says.
Thomas: So, if your subordinates had given that letter to an
individual who wasn't using a structure for living accommodation
purposes, would they have been abusing the authority that you
vested in them?
Martinez: Objection, your Honor, that's a hypothetical question.
THE COURT: Objection is overrruled, I think the witness can
answer whether they would be abusing or whether there would be some
other explanation for the conduct.
Fish: I would rely on them to make that judgment that they
wouldn't arrest someone that was not in violation -- or was in
violation -- they would arrest someone that was in violation of the
camping regulation.
THE COURT: You relied on them to properly apply your
directions.
Fish: Yes, sir.
THE COURT: And if they did or not, that would be up to a court
to decide whether they had complied with your instructions or not.
Fish: That's right.
THE COURT: Well, let me ask a couple more germaine questions.
In June of '82, do you have any recollection of having ever heard
of Mr. Thomas at that time?
Fish: I most probably would have, your Honor, but I just don't
know that for a fact.
THE COURT: Okay, then, just for clarity of the record, did you
write this direction, directive, on the twelfth (sic?) "To Whom It
May Concern" with reference to Mr. Thomas being in mind or thoughts
about what he was doing, about him being arrested or not, or do you
have any recollection at this time as to whether that was directed
at Mr. Thomas, or whether it had general applicability to anyone?
Fish: My recollection is that it was general, but your Honor,
there were a group of people camping, and it was for that group of
people.
THE COURT: Okay, all right, next question. Was there a
document prepared with any view towards the content or substance of
what the people were demonstrating about?
Fish: No.
THE COURT: All right, go ahead, Mr. Thomas.
Thomas: If you say that the document was prepared with a specific
group of people in mind, it would seem that the document says that
the group of people it was prepared in reference to was a group of
people who were using temporary structures for living accommodation
purposes.
THE COURT: That's (unclear), what's your question? He's
already testified he relied on park policemen on the scene and
subordinate officials to determine from their viewing whether there
were -- who in fact was violating this general directive.
Thomas: Were you informed as to any arrests that were made as a
result of that letter?
Fish: Specifically, I don't recall.
Thomas: Is there any way that your memory could be refreshed on
that?
Martinez: Objection, your Honor.
THE COURT: All right, sustained. That's such a broad, general
question, I don't know whether he would know or not unless you had
some documents--
Thomas: I don't know, maybe somebody would have some documents.
THE COURT: Let me ask you this question. Do you recall ever
reviewing incident reports or arrest reports that grew out of
people being on the Ellipse?
Fish: I do not recall that specifically.
THE COURT: Do you recall having meetings or conferences with
the Solicitor's office, representatives or any other National Park
Service officials involving the arrest which resulted?
Fish: I don't recall.
THE COURT: All right, I think that's a proper line of
inquiry, a little bit more precise than "is there anything to
refresh your recollection." Go ahead, Mr. Thomas. I don't know if
you want to move forward from June of '82 to the current time as to
other incidents (unclear), let's see if we can move along in our
inquiry, or to pursue it. (pause) Do you have a question--
Thomas: Responsibility. "I have determined that you are" --
THE COURT: Well, you have a question -- you used the
terminology "I have determined" -- had you been briefed or advised
by any subordinates that there were people camping on the Ellipse
grounds at the time you wrote the memorandum?
Fish: Generally I would have been, your Honor. Specifically as
regards that, you know, I just don't know.
THE COURT: All right. Mr. Thomas' problem partly seems to be
the phrase "I have determined," as if that's past tense, as if
someone had given you a factual summary of what was occurring prior
to this memorandum being prepared. Do you have any recollection
that that had in fact occurred, and that some subordinates had
given you a briefing as to the factual circumstances?
Fish: Normally it would, I would , your Honor, I wouldn't
normally sign otherwise.
THE COURT: Based on what you were told, you were satisfied
that the letter was appropriate?
Fish: Very definitely, your Honor.
Thomas: Do you remember what you were told?
Fish: No, again, specifically I do not.
Thomas: Well, I think you said that you were told that the
individuals were camping on the Ellipse and that they were using
temporary structures.
Fish: As I recall.
Thomas: And you also said in November of '81 that some forms of
symbolic camping are permitted under the regulations.
Fish: Uh huh.
Thomas: So, if your subordinates came to you and said that--
Fish: Excuse me, Mr. Thomas, but our suggestion in that
reference to November of '81, the letter says our suggestion is to
erect a number of tents for symbolic purposes while providing
shelter for people in designated Park Service camping areas was not
acceptable in the letter to Mitch Snyder.
Thomas: Okay. But your subordinates come to you, they tell you
there are people that are camping on the Ellipse with temporary
structures, you write a letter warning the people that unless they
cease this activity they're going to be arrested, your subordinates
take that letter, the people on the Ellipse go away--
THE COURT: Well, Mr. Thomas -- was the Ellipse a designated
camping area?
Fish: No sir, it was not, your Honor.
THE COURT: Okay, that's one question. Number two, if you've
got a question, what's the difference between symbolic placement of
tents and camping, and using the facilities for living
accommodation as opposed to symbolic use of tents, maybe you could
explain that to Mr. Thomas to clear up some of the colloquy that's
been going on, the difference between symbolic use of tents and use
of tents for actual living accommodations. That seems to be the
quandary here,where do you draw the line, what guidelines were your
park policemen or law enforcement officers following at the time
between that type of description? Put it down on the record, maybe
we'll get some meaningful response to what this proceeding is
about, Mr. Thomas.
Thomas: Thank you, your Honor.
Fish: That's why we did publish those regulations, your Honor,
that there would be a clearer definition of what camping did
consist of as opposed to symbolic tents and of course symbolic
(unclear).
THE COURT: Can you give a brief explanation on the record now
to satisfy Mr. Thomas and satisfy any subsequent court that might
review this transcript as to where you drew the line and what
constructions generally were given to the park police law
enforcement officers as to the distinction between the symbolic use
of tents and using tents for living accommodations which, as I
infer, you concluded from your briefing was occurring on the
Ellipse, and that was not symbolic use of tents but going beyond
that, if you'll explain that to Mr. Thomas.
Fish: Camping constitutes using the tent or whatever, structure,
for living accommodations, storing of personal belongings, the,
cooking, those types of, of things, and we tried to indicate in the
regulation that a reasonable person would view that as using that
as living accommodation as against the symbolic tent that might be
placed in the park, and that the demonstrator or whatever would be
able to, to express his message that he wanted to get across, so
the tent would be there, but it would not be used for living
accommodations.
THE COURT: Okay. Just to clear up the record and to clear
Mr. Thomas's theories, with reference to the symbolic use of tents,
could there be, based on instructions that you had promulgated and
given to park police during `81 or '82, any use of tents where the
occupant thereof, for symbolic purposes, could also cook, could
also store belongings, could also sleep there, or would that cross
the threshold and be no longer symbolic?
Fish: I would say that probably crossed the threshold, your
Honor.
THE COURT: That was the instructions currently given to park
policemen at the time, symbolic camping, use of tents, would not
include sleeping in the tent, using the tent for cooking, eating
and storing of belongings. Is that your testimony?
Fish: Yes sir.
THE COURT: Well, I don't want -- I want you to testify.
Fish: No, that's it, it, and again, that's why we, we, after
the--
THE COURT: Well, I don't want -- We haven't gotten to the
question of when the regulation was promulgated yet, we just want
to -- we're talking about November 1981, June '82, what the
distinction was being made in the letter to Mitch Snyder and the
letter to "To Whom It May Concern." That's all, that's all we're
trying to clear up now.
Fish: Over the threshold would have been sleeping, cooking,
storage of personal belongings, that type of thing would constitute
camping.
THE COURT: So the symbolic use of tents would not have
included sleeping in the tent, would not have included having
cooking apparatus in the tent, nor storing of belongings in the
tent in November of '81 and June of '82.
Fish: I would guess that's right, that's part of the regs
concerning--
THE COURT: Well, like I say, those aren't the regs we're
talking about right now in the two, two documents that we've been
talking about the last fifteen or twenty minutes or so. All right,
Mr. Thomas, do you want to follow that up?
Thomas: With respect to the situation of camping or the threshold
of camping, subsequent to the June 4 letter, if -- again along the
same line -- an individual was sleeping outside the tent, had a
tent up for symbolic purposes and was sleeping next to the tent,
would you determine that to be living accommodations?
Martinez: Objection, your Honor. That's another hypothetical
question. It seems to me we've been going here for almost an hour
now, we're not even within the scope of what you set forth as the
parameters of this deposition in your August 1, 1986 Order.
THE COURT: All right, well, this one final question I'll allow
him to answer that, but then I think you'll need to get a little
more to the central issues. You may answer the question, sleeping
lying down beside the tent, if a person were to sleep there all
night, would that be camping or not, would it make any difference
whether a person was inside the tent or outside the tent?
Fish: I would think generally yes, that would constitute
camping.
THE COURT: Go ahead, Mr. Thomas.
Thomas: So, where the letter says that "unless you remove the
structures that you're using for living accommodation purposes
you'll be guilty of camping" -- if a person was not using a
structure for living accommodation purposes, he would still be
guilty of camping?
THE COURT: I'll sustain the objection.
Thomas: What, what -- (pause) -- Is it living accommodations if an
individual doesn't have a structure?
Martinez: Objection again, your Honor.
THE COURT: That's not relevant to the inquiry of what happened
to YOU here.
Thomas: Well, it's relevant--
THE COURT: That's one of those hypothetical questions, and
what Judge Oberdorfer provided was the question of whether or not
you personally, your rights were violated. The Court of Appeals
and Supreme Court have looked at the camping regulation generally
in hypothetical situations. We're trying to deal with your
particular situation as to what happened to you, what Mr. Fish
knows about your circumstances, whether or not you were arrested
without probable cause, or for not violating the regulation, and so
forth.
Thomas: Your Honor--
THE COURT: Let's focus on you rather than the generality of a
hypothetical situation.
Thomas: It seems to me that either Mr. Fish bore some
responsibility for the decision expressed in this June 4, 1982
letter or he didn't.
THE COURT: Well, that's been established, and as director of
the area certainly he has overall official supervisory
responsibility, but that doesn't mean he couldn't delegate. That's
a legal question that Judge Oberdorfer ultimately may have to
decide, or the Court of Appeals may decide. We're not dealing with
the legal concept of responsibility, we're dealing with the
question of his motive and intent and what he personally knew.
That's why he's here to be deposed, and I can say at this point
he's explained to you how he wrote the memorandum. The question
is,after June of '82 did he become aware of you personally? Did he
take any action with reference to you personally? Did he direct
any of his subordinates to do anything with reference to you
personally? That's what we're here about.
Thomas: I would submit that that letter indicates that he did take
some action toward me personally. That letter was delivered to me
and I was arrested pursuant to that letter.
THE COURT: Well, he's testified that he addressed the letter
to "To Whom It May Concern" and he didn't know whether you were the
ultimate receiver of it or whether you and fifteen or twenty other
people may be.
Thomas: Well, I think he's got some responsibility in that.
THE COURT: Well,you can argue the issue to the Court, he's
certainly responsible for the letter, but he's explained the
circumstances sufficiently for this court at this point. I think
at this point the question should go on to other incidents and
other events, as to whether or not he had any personal involvement
in those by way of his official capacity.