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?