Thomas: Yes -- no, the one underneath it, the fifth paragraph.
[TAPE 3]
FROM NOTES (some questions lost on tape):
THE COURT: Identify, has he seen before -- ask question.
Fish: Called attachment 16, appears to be a general statement by
W. Thomas 6/5/82.
THE COURT: Who's W. Thomas?
Fish: I assume the same person here.
THE COURT: Before today have you seen him?
Fish: Not that I recall.
Thomas: I'd like your Honor to take judicial notice -- it was
filed in the camping case you heard September 1982. Officer Samuel
Wolz testified that I gave him a copy of that document prior to his
arresting me June 4 (sic), 1982.
THE COURT: What's your question?
Thomas: If you had been the arresting officer--
Martinez: Objection, your Honor.
[RESUME FROM TAPE 3]
THE COURT: All we would be getting from the witness here is
his advice (unclear) or me or Judge Oberdorfer or whoever else
would have to decide the legal propriety of Officer Wolz' conduct
at the time in question.
Thomas: It seems to me, your Honor, that we've established a few
things. We've established, I think, that it's not the policy of
the Park Service to simply arrest people, that it's the policy of
the Park Service to try to work with people who are engaged in
expressive activity, that Mr. Fish issued a letter delegating
responsibility, and I'm just wondering whether he, as a responsible
individual, would have acted as the agent to whom he delegated
responsibility, or whether he approves of that agent's--
THE COURT: Well, even if he didn't approve of it wouldn't be
material at this point. The question is factually what happened--
Thomas: Well I think--
THE COURT: -- and your testimony at trial, Mr. Wolz' testimony
at trial, and then Judge Oberdorfer's going to have to decide the
question of whether or not the officer acted properly or not, and
so forth, consistent with the policies, consistent with
regulations. And what another officer, even a superior, may later
say about whether the officer made a mistake, or if he acted
willfully, wrongfully, legally are of no consequence, it's
ultimately for the courts to resolve that issue. And the argument
you're making may be properly addressed to prior fact, but what
this witness' opinion, I wouldn't be bound by it, if he said it was
entirely proper, Judge Oberdorfer wouldn't necessarily take his
word for it. So at this point what his view on the subject is is
immaterial.
Thomas: I think the materiality of it that I think there is, is
that either Mr. Fish would condone what I would be representing as
impermissive behavior, in which case I think he would bear some
culpability for it, or he would not condone it, in which case he
wouldn't be culpable.
THE COURT: Well, the question of condoning or ratifying
conduct would have to be at the time, not when his superior is on
the witness stand here today. And the fact that he agreed or
disagreed today would be immaterial. If in fact a week after the
event occurred someone made a complaint to him in the question like
police brutality cases and the Chief of Police or someone didn't
take action, in this case, maybe there might be something back
then, but it hasn't been established that before today Mr. Fish has
ever been advised of the incident or knew anything about what
happened. Today he says he's never seen your document before
today. So what he says today, his opinion is of no consequence.
Let me ask you this question, just to clear up -- as to ANY of Mr.
Thomas' arrests, did you ever get any complaint that any park
police officer had acted improperly, from June of '81 to the day
this case was filed in November of '84?
Fish: I don't recollect, your Honor.
Thomas: If I sent you a letter, would you then -- complaining of
improper behavior, would you then--
THE COURT: Wait, did he -- why don't you ask him does he
recall receiving any letters that you ever sent him, if you sent
him a letter? Ask him what he recalls rather than what he would
have done.
Thomas: Do you recall ever receiving any letters?
Fish: I don't recall ever receiving a letter.
Thomas: Do you recall what transpired after you signed the letter
of June 4, who you gave it to or what they said they were going to
do -- who you gave it to, do you recall who you gave the letter to
after you signed it? The June 4 letter?
Fish: No, I don't.
Thomas: Do you recall anything about it?
Fish: Just what I already mentioned.
Thomas: (pause)
Fish: Exhibit No. 4 is a form, a request for OMB review, and
it's two pages signed by an official of our national office,
National Park Service's national office, signed by me, it's dated,
excuse me, your Honor, 3/28/83.
THE COURT: OMB review of what?
Fish: It would be a, apparently it's under the Paperwork
Reduction Act and Executive Order 12291, and it's in, in regard to
the regulations which prohibit signs or placards that are not
hand-carried on the White House sidewalk, and prohibits storage of
parcels, containers, bundles, and other propertyon the sidewalk
surrounding the White House to further security, aesthetics, and
clear passage interests of the government.
THE COURT: Okay, that's sufficient, I just want to make sure
it was relevant to this case. Go ahead, Mr. Thomas.
Thomas: Could you identify the--
Fish: That was four. There was one area, that, question #19,
"type of affected public, check as many as apply, one, two, three,
four." One is checked, and it's "individuals or households."
Thomas: Okay, could you go through the other two documents quickly
with the same information please?
Fish: Apparently a request for OMB review -- they don't look the
same, but it's Standard Form 83 -- and it's entitled "The
Information Collection of Rulemaking, National Capital Parks
Regulations, Lafayette Park, structures prohibitions, sign
limitations." The affected public is checked as individuals or
households, it is signed by myself on 8/7/85 and by an official in
the national office the same day.
THE COURT: That's exhibit number what for the record.
Fish: Excuse me, your Honor, that's Exhibit no. 5, and it's five
pages. And then the same type of form--
THE COURT: Exhibit No. 6, now, you're referring to?
Fish: Yes. This too is a request for OMB review, and it
indicates National Capital Park regulations, Lafayette Park,
structure prohibitions, affected public checked as individuals or
households, signed by myself on 2/3/86, February 3rd '86, signed by
an official of the national office on the same day, as I say, it's
two pages.
THE COURT: All right, we have identification then. Each of
those three documents are copies of documents you have seen before,
you personally have.
Fish: Yes.
THE COURT: All right, go ahead, Mr. Thomas.
Thomas: Okay, now I'm going to show you Exhibit 10 and ask you if
you would identify it and to read the highlighted part on the pages
I'm showing you.
Martnez: Your Honor, if I might, Exhibit 10 is the White House
sidewalk rule that Judge Bryant found procedurally defective. So
I don't know if -- I mean that's not the regulation that was
ultimately (unclear).
THE COURT: I don't know what the question is going to be, so
let's have the question so I can determine whether it's relevant or
not.
Fish: Exhibit 10--
THE COURT: Exhibit 10? Okay, go ahead.
Fish: --is the Federal Register of April 22, 1983, 36 CFR 50
National Capital Park regulations, demonstrations in the White
House area.
THE COURT: I believe Mr. Thomas had asked you about the
highlighted part. Will you read it into the record so the record
shows an orientation with his question.
Fish: "For example, two individuals who have in the past and are
presently maintaining a daily demonstration in front of the White
House have had as many as 25 signs or placards leaning against the
White House fence. In addition to the signs, paper bags,
suitcases, and other parcels containing personal belongings
obstruct the view of the White House and impede the flow of
pedestrian traffic."
THE COURT: Quote unquote. Is that, just for the record, so
when it's transcribed, is that the total of the yellow highlighted
material?
Fish: Yes.
THE COURT: Mr. Thomas--
Thomas: Thank you. The question is, do you, can you identif--
Fish: There's another highlighted area.
Thomas: We can get to that maybe if necessary, but can you
identify those two individuals?
Fish: No, I, I can't.
THE COURT: Well, let me ask you this question. Do you --
today then you don't know who, who that reference is to?
Fish: No, I don't, your Honor.
THE COURT: Did you know at the time that the regulation was
promulgated the identity of the two individuals to whom that
passage referred?
Fish: I may have, your Honor, I mean it may have come up in
conversation with the Solicitors.
THE COURT: Okay, but you don't have any distinct recollection
today.
Fish: No I don't.
THE COURT: You don't know for the record then whether one of
those two individuals was a reference to Mr. Thomas or not.
Fish: I don't know that for a fact, no sir.
Thomas: Could you check on there and see whether or not you
suspended they delay of effectiveness on the regulation.
THE COURT: The document speaks for itself. How is that
maerial? The question is what was going through his mind, and
whether he believed that you were one of those two persons. The
regulation in the record, administrative record will probably show
what happened with the regulation.
Thomas: I think there's some question as to whether or not there
was good cause for suspending the delay of effectiveness of the
regulation, and I thought that perhaps it might be cleared up,
whether he recalls whether the document shows--
THE COURT: The document can show for itself, speak for
itself. Whether he recalls anything about the effectiveness of the
document, you can ask that question.
Thomas: Thank you. Do you recall whether or not having suspended
the delay of effectiveness, that was held up?
Fish: I don't recall.
Thomas: Okay, I'll just show you--
THE COURT: Again by way of questions involved in this case,
let me just ask a couple of other clarifying questions. At the
time the '83 regulations were being promulgated, do you recall any
discussion with you, or any Department of Interior or National Park
Service officials, about the content of the signs or what these two
individuals were saying or whether that was contrary to the views
of the administration or anything of that type at all?
Fish: No, sir, your Honor.
THE COURT: So with reference to that passage that has just
been read into the record, what was on those structures or signs
had nothing to do with the regulations, is that your testimony?
Fish: That's absolutely correct.
THE COURT: You don't recall who the two individuals were, you
don't recall what the content was, the content had nothing to do
with the regulation itself being promulgated?
Fish: That is, that is correct.
THE COURT: All right. That's what's important in this case.
Thomas: Do you recall whether or not you entered into any
discussions with respect to enforcement of that April 22
regulation?
Fish: I don't recall specifically.
Thomas: Do you recall whether or not any enforcement took place?
Fish: I do not.
Thomas: Would you read the other highlighted part, please?
Fish: "Further, the interim rule applies only to the sidewalks
contiguous to the White House. A substantial number of alternative
forums exist close to the White House sidewalks where these
restrictions do not apply."
THE COURT: Okay. What's the followup question, Mr. Thomas?
Do you have a question based on what he just read into the record?
Thomas: Um, well I will get to that question shortly.
THE COURT: All right.
Thomas: Could you just quickly identify that document and read the
two highlighted parts?
THE COURT: Refer to it by the identification number.
Fish: Exhibit Number 11. And it's a Federal Register, copy of
a Federal Register document Tuesday, May 17, 1983, and one
highlighted area: "For example, two indiv--"
Martinez: Your Honor, at this point I, the two highlighted areas in
this exhibit are exactly the same as the two highlighted areas in
the other exhibit.
THE COURT: Verbatim?
Martinez: Verbatim.
THE COURT: All right, why don't you just ask him your
question?
Case Listing --- Proposition One ---- Peace Park