THOMAS v. REAGAN

USDC Cr. No. 84-3552

Deposition Continued

Thomas: Do you remember ever talking to me during that period?

Bangert: (pause) No, I don't remember talking to you.

Thomas: Do you remember talking to anybody?

Bangert: I don't recall talking to anybody, no.

Thomas: Were there signs? If you recall --

Bangert: I honestly do not recall whether there were signs that particular night --

THE COURT: That particular what?

Bangert: That particular night, or not. I understand, I mean I know there are signs since then up there. That night I don't recall.

Thomas: If there had been signs there, would that have been some indication that there was expressive activity that may have -- would that have -- if there had been signs, would that have indicated to you that there may have been expressive activity involved in the situation that was occurring?

Bangert: If there had been signs out there then that would indicate that someone had signs and was demonstrating, but signs alone would not make camping legal, would not imbue camping with First Amendment--

Thomas: Because it says that regardless --

THE COURT: Let the witness answer.

Bangert: -- of, would not cause camping to be protected under the First Amendment. Camping is illegal. Even if it is used to facilitate a demonstration, in fact the Supreme Court has, wasn't clear on (cough) excuse me -- that camping by itself expresses any sort of First Amendment mess-- uh, message.

THE COURT: To bring it back to the factual situation. You mentioned that there were people in sleeping bags, pulled up over their heads, water jugs, foodstuff around. If along with the jugs there were signs propped up there at the same time, would that make the situation any less a camping violation based on what you observed at that point?

Bangert: No, your Honor. A camping violation is a camping violation, whether --

THE COURT: The presence of signs would not take necess--would not change the violation with the facts otherwise indicating there was a camping violation?

Bangert: Uh, no sir.

THE COURT: All right. Ask the the rest of your question.

Thomas: Yeah, turning it around, if there were signs, and there were no jugs, would it then be camping?

THE COURT: If they were in a sleeping bag, sleeping?

Thomas: Yeah, if there was a person in a sleeping bag, and there were signs, and there was, there were no other articles, would that be camping?

Bangert: Well, you can't take a static picture and say, "Is it camping or not?" because casual sleeping in a park is not camping. You have to look at the whole realm of activities that the person is engaged in. I would not walk up to a park and see someone sleeping and say, "aha, that's camping!" It doesn't work like that, at least in my mind. Camping is looking at the whole scene, and if a reasonable person would think that that person was engaged in using the park as a living accommodation, that is camping. So, I simply can't answer a question where you give me a snapshot and say, "Is that camping?" I need more than that.

THE COURT: Legal indicia is sleeping, one of them, where other circumstances exist?

Bangert: Yes, your Honor, sleeping is one of the indicia, laying down bedding materials, storing personal belongings, having foodstuff, breaking ground, building fires, all of that is indicia. If someone is, is in the park for a substantial amount of time, never leaves the park, is in fact using the park as a living accommodation, that's camping.

Thomas: What about if someone is in the park all the time, never leaves the park, has big signs, is not building fires, is not preparing food, is not using a shelter, is not breaking ground, would you as a reasonable person consider that to be camping?

Martinez: Objection your Honor, I'm going to object to this line of questioning any further.

THE COURT: Sustained. (Unclear) hypothetical rather than factually what happened. Ultimately what is or what is not camping will depend on the facts in this case before Court of Appeals, again, to try to put it in the Supreme Court or Court of Appeals as to interpreting given fact situations and so forth. Now, what she saw, what she told the Park Police to do with reference to you, that's what I want, as to actually what historically, actually occurred. Hypothetical questions I think we're getting a little far afield at this point. (pause) Just to clear up the record let me ask a question. Do you recall in '82, 1982, ever telling the Park Police to arrest Mr. Thomas, specifically referring to him for any activity or conduct on the sidewalk near the White House or in Lafayette Park? This is '82 --

Bangert: I don't remember ever telling the Park Police to arrest him. I remember one time the Park Police called us and said there is a problem with people camping in front of the White House and we responded to the scene.

THE COURT: Once you responded to the scene, did you tell the Park Police at that point to make an arrest or not to make an arrest?

Bangert: Mr. Thomas was arrested. I can't say that I--

THE COURT: The question is, did you affirmatively tell them to do so, let's clear that up for the record.

Bangert: Yes sir. I don't recall specifically being the one who told the Park Police to arrest Mr. Thomas--

THE COURT: All right.

Bangert: -- or if anyone told them to arrest Mr. Thomas.

Thomas: You said that casual sleep was not camping.

Bangert: Without the other indicia.

Thomas: You don't know exactly what the other indicia--

Martinez: Objection, your Honor--

THE COURT: Mr. Thomas, I've ruled on this line of questioning, you're going back to the hypothetical again, and like I say at this point we've had a case before the Supreme Court and there was a case in the Court of Appeals, and it would not be fair, we can't go against what the appellate courts are saying, so let's get to what the facts were, what she saw, what she did, from '82 if you want to move forward, let's move it on to '83, '84, '85, as to what she actually did at the time.

Thomas: Whose responsibility would it -- are you familiar with the definition of "demonstration" --

Bangert: As, as it's, as it appears in our regulations, yes.

Thomas: And that includes "vigil," does it not?

Bangert: I think it--I don't recall whether that does or not.

THE COURT: For the record, what are you showing her?

Thomas: Fish deposition No. One.

THE COURT: Okay.

Bangert: Yeah, this definition does specifically mention vigils.

Thomas: Now--

Bangert: And -- excuse me -- this definition is contained in 36 CFR 50.19(a).

Thomas: Now is a demonstration a protected form of activity, is that protected activity? M: Objection, your Honor. It seems to me he's asking the same--

THE COURT: Don't get into abstract questioning of law. The witness is not here to give legal advice or advisory opinions at this point, she's here to give actual factual information as to what she saw and so forth.

Thomas: It seems to me that she's here to tell us what sort of advice she gives to the Park Police.

THE COURT: Okay, you can ask her that, as I say, factual information, you can ask her general, broad questions. Did she ever tell the Park Police whether a vigil was a demonstration or not, you can ask her that question, but that's not what you asked. You asked her for a generalized definition, and ultimately you and Mr. Martinez or someone will have to argue that before the jury or Judge Oberdorfer as to the regulation and what the Court of Appeals say in the vigil case and what the Supreme Court has to say in the camping regulation case. (pause) What she did, what she told the Park Police, fine, go ahead and ask her that, don't ask abstract legal questions.

Thomas: The question I think in this case is not an abstract legal question, because this witness is a lawyer, is responsible--

THE COURT: Well, don't argue, Mr. Thomas, follow my instructions. Ask her what advice she gave, don't ask her what the law means, and tell me what this means, tell me what that means, that's my point. What the regulation means, what the First Amendment means, that's for the courts to resolve, not for her to resolve. Now what she told, do you understand, this is the question, what she TOLD Park Police those terms mean, you can ask her that, between 1982 and 1985, what she did, what advice she gave the Park Police, you can ask her those questions.

Thomas: Did, did you advise the Park Police that a vigil was protected activity?

Bangert: I don't recall ever being specifically asked that question or specifically answering that question.

Thomas: Did the Park Police ever ask you what the difference was between a vigil and camping?

Bangert: I don't recall ever being asked that specific question.

Thomas: If a person, if a person is conducting a vigil and has a problem with the police about camping, where would he go to have that problem solved?

Bangert: What kind of problem are you talking about?

Thomas: Well, let's say that -- he says that he's trying to express a, he's trying to express a message, and the police say, "You're using the area for living accommodations" and arrest him, how would you resolve that problem, how would he, how would he go about determining what it was that he could do to express his message without being arrested for camping?

THE COURT: Let the Court rephrase that question (unclear)

Bangert: I'm not sure I understand it.

THE COURT: If the Park Police told an individual that that individual was being arrested for violating camping regulations, and the individual disputes and says "I'm not violating the camping regulations, I'm exercising my First Amendment rights," what options, if any, does that individual have with reference to trying to get that clarified as to whether that individual's right or the police officer's right. Is that the question?

Thomas: Maybe we can start with that. Thank you.

Bangert: (pause) I'd say --

THE COURT: Can that individual ask you or ask the Solicitor's Office for instructions to the officer as to whether he or she is in violation of the regulation? That's one option.

Bangert: Well, we certainly have had individuals call us at the Solicitor's Office to clarify points of regulations. I guess in general when a person wants to conduct a demonstration the first place they go is the permit office, and at the permit office, fill out a permit application, if they have any questions about the demonstration they ask the people in the permit office, and--

THE COURT: Assume this is a situation of less than 25 people and they don't need a permit, it's an individual, solo person and there's a dispute between a park policeman and the individual as to whether conduct is in violation of a regulation or valid exercise of First Amendment rights, what option does the individual have?

Bangert: Well, I--

THE COURT: In resolving the issue, one option of course is getting arrested and coming to court and letting a judge decide whether the officer was right or the individual was right. What other options are there?

Bangert: Well, the first thing I would advise the person, if I'm just being called out of the -- I would advise the person first to go to the permit office to see if they couldn't answer his or her questions about demonstrations and demonstration regulations. If the permit office could not -- this is the way it generally happens -- if the permit office could not answer the questions, if the questions were purely legal questions, then they would probably call us and ask our advice. We would then confer with the people in the permit office and they would get back to the individual asking the question or, in many cases what happens is we all would meet with the permit office and the individual asking the question. So, that's what generally happens. Now, in Mr. Thomas' case, I mean, we have a very specific thing that did happen.

THE COURT: Okay, why don't you tell us. That's what I'm trying to get Mr. Thomas to -- let's get to facts, rather than hypothetical. Go ahead.

Bangert: Mr. Thomas had some questions about camping. I talked to Mr. Thomas' attorney, Mr. Graber, and told Mr. Graber to contact us, and that we would meet with Mr. Graber and Mr. Thomas whenever they wanted. I never again heard from Mr. Graber. That was the way we thought it was best to proceed in his case, is to have his attorney present, and while talking to him.

THE COURT: Just so the record is clear, there are two additional matters. Put that in a time frame, and also clarify for the record what it was that Mr. Graber was calling about, which regulations, so we can clear the record.

Bangert: The time frame is difficult. I know it was at least, it was a substantial amount of time ago. It was after --

THE COURT: Before this suit was filed, or after the suit was filed? The suit was filed November of '84, so that takes us back almost two years ago. We're fast coming up on November of '86.

Bangert: I honestly cannot tell you. I know that it was after Mr. Thomas was convicted of some violation by, Judge Oberdorfer, as a matter of fact. Judge Oberdorfer had indicated to Mr. Thomas somehow he should get in touch with us and discuss the camping regulations. Mr. Graber, I met Mr. Graber here at the courthouse one day, and he indicated that the judge had indicated that course to Mr. Thomas. I then told Mr. Graber that I had not seen anything in writing to know anything about that, would he contact me, and we would hold a meeting. But whether it was a year ago or two years ago, I honestly can't recollect.

THE COURT: Your memory is that it was after Mr. Thomas had been tried on a petty offense, a misdemeanor charge before Judge Oberdorfer. You do not recall whether, or whether it was in fact about camping.

Bangert: Yes, sir, it was about camping. This was part of probation --

THE COURT: You don't recall whether it was before or after this case was filed, this civil case before Judge Oberdorfer.

Bangert: No, I'm sorry--

THE COURT: All right, I understand, I just wanted, I'm trying to make the point, I'm trying to make a clear record so someone reading the transcript of your deposition later won't be puzzled as to when or what you're talking about. Go ahead, Mr. Thomas.

Thomas: Would you contradict, do you have any reason to contradict my representation that I have been maintaining a vigil?

Martinez: Objection, your Honor.

THE COURT: Sustained. You can testify at trial as to your representations. Whether she can contradict it or not, you can ask her that question, but she says she's aware of existence or that you were around from 1982 on. Like I say, whether what you mean by a vigil, whether it's a legal definition of a vigil or even a vigil (unclear) because that's what this whole case is about and you (unclear) two or three years into this. The question is too broad and vague and that's the reason I sustained his objection.

Thomas: Thank you.

THE COURT: Let me just ask one more clarifying question. Prior to these incidents, do you recall any prior incidents where Mr. Thomas first, or anyone on Mr. Thomas' behalf, contacted the Solicitor's Office and tried to get clarification as to whether the Park Police were properly arresting him or whether his conduct violated camping regulations. Just to clear up the record, that was the first time?

Bangert: I remember the permit office asking me to attend a meeting with Mr. Thomas, which I did, in which his--

THE COURT: Tell us what you recall about that particular meeting so far as Mr. Thomas is concerned.

Bangert: Okay. Mr. Thomas was asking for a permit, he had come down to the permit office with, I think he might have wanted to discuss a variety of things, but especially the use of electricity in Lafayette Park, he wanted to use the Park's electricity, and we told him that that was fine, and that it would be made available to him, except that if another group came in and had a permit, he would have to allow them to use it, then we'd give it back to him. He asked about getting an actual permit for the demonstration, and we told him he could do that but he didn't need to do it unless he was going to have a structure because it was a group less than 25, so unless he were going to have a structure he wouldn't have to have a permit, and he finally decided not to get a permit because he wasn't going to have any structures, he indicated to us.

THE COURT: Again, just for completeness of the record, can you put that in a time frame?

Bangert: A year or two ago, maybe two years.

THE COURT: That was prior to the time Mr. Graber spoke to you?

Bangert: I'm sorry --

THE COURT: I said, that was prior to the time that Mr. Graber approached you?

Bangert: Uh huh. It may have been two years ago, I think it was shortly after Ellen joined Mr. Thomas, married Mr. Thomas.

Thomas: Do you recall where the meeting took place.

Bangert: No, I don't recall specifically, it may have been two years ago, two and a half years ago.

THE COURT: He said "where."

Bangert: Oh, where? It took place in Mr. Al Dale's office in the headquarters of the National Capital Region at 1100 Ohio Drive Southwest.

Thomas: So, basically what I was trying to get at, you were aware that or had reason to be aware that I was involved in demonstration activities.

THE COURT: That you claimed to be involved with demonstration activities, she's testified to that.

Thomas: I just wanted to make sure --

Bangert: I'm sorry, your Honor, I'm just remembering other instances in response to your question. There were also times that I went up to the park to meet with Mr. Thomas. For example, one time when we were getting complaints from the other side of the White House, the Ellipse and Smithsonian about Mr. Thomas' sound system, and the people from the office I think wanted to tell him that he just couldn't use the electricity because he had abused that privilege, and I would have to--

THE COURT: Just for clarification, the electricity being used for a megaphone, an amplifier--

Bangert: Yeah, no, some sort of huge sound system that-- we had gotten complaints from people at the Smithsonian about it, that it was so loud people on the other side of the White House, on the Ellipse, and on the Mall could hear it, and people in the permit office called and indicated they desired to cut off the electricity, to not allow him to use the sound system because he had been abusing it so badly, and we'd gotten so many complaints about it, and I went out to the park and spent about an hour, I think, with Mr. Thomas--

THE COURT: Talking to Mr. Thomas personally?

Bangert: Yeah, to Mr. Thomas, and Mrs. Thomas, and what we did was, we went out there and met Carolyn O'Hara, the site manager for President's Park, and what we did was to stand at various distances from the sound system and try to determine at which amplification level the sound system could be set on so that it could cover his demonstration area, a rather large area. We spent about an hour walking back and forth and standing in different areas and trying to adjust it so that he could keep the electricity, could keep the sound system, but it would only cover his area, and then we mutually arrived at a sound amplification level that he agreed to and we agreed to and so there wouldn't be any more hassles between Mr. Thomas and the police.

THE COURT: And again put that into a time reference.

Bangert: I'd s-- Either fall 1984 -- no, I'm sorry, probably spring or summer '84, I think, to the best of my recollection.

Thomas: Do you recall the sound level that we agreed on?

Bangert: No, not the specifics -- just that the sound level that would cause the sound just to go within your demonstration area, but no further than that.

Thomas: Were there any subsequent difficulties with that specific matter of the sound amplification equipment?

Bangert: Unfortunately, yes. I was called and told that as soon as I left the park, you had turned the sound level back up.

Thomas: And then what happened?

Bangert: I told the agent that you had in fact abused that privilege and that you were violating the regulation, that we had indicated that your sound system should extend only to your demonstration, and it would be appropriate if they so desired to tell you that your electricity privilege had been rescinded.

Thomas: And do you know whether that ever happened?

Bangert: No, I don't.


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