THOMAS v. REAGAN

USDC Cr. No. 84-3552

TRANSCRIPT CONTINUED

[TAPE 2]

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.

Thomas: Let's try marking this for Exhibit.


Case Listing --- Proposition One ---- Peace Park