USDC Cr. No. 84-3552
THOMAS v. REAGAN
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
vs. CA No. 84-3552
Judge Louis Oberdorfer
UNITED STATES OF AMERICA, et. al. Magistrate Arthur Burnett
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT LINDSEY'S MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT
Twice (see Orders June 3, 1985 and June 4, 1986) Judge
Oberdorfer has ruled that plaintiff stated "a substantial federal
claim" or "potentially meritorious claims," and on June 4, 1986
noted that "this action is presently before the Court on
plaintiff's Amended Complaint, filed October 16, 1985."
This action was initially filed on November 21, 1981, in a
pro se Complaint. With only the best of faith plaintiff has
labored to bring this matter to issue. For over twenty-one months,
despite plaintiff's repeated objections (e.g. June 26, 1986 hearing
transcript at 35; see also Opposition to Federal Defendants'
(Second) Motion to Dismiss at 29-31), Government Counsel has
finally taken one small step toward understanding and
clarity in this matter with the filing of Federal Defendants
Answer, on July 21, 1986.
Counsel makes certain representations which appear to merit
questioning (i.e., that Lindsey had "nothing to do with enforcing
the regulations," Transcript, June 25, 1986 in this matter, at
___; "David Harley was tried, and convicted for stealing the
camera" (Memorandum of Law in support of Defendant Lindsey's
Motion to Dismiss or for Summary Judgment ("Lindsey's Law"),
footnote 2, at 8), etc. In fact, as noted (IID, para. ),
defendant Lindsey was not, as counsel would have us believe
(Lindsey's Law, ftn. 2, page 8), totally uninvolved with the
episode of June 6, 1984. (See IID, para. ___.)
II. SUFFICIENCY OF EVIDENCE
According to counsel's "Background" (Memorandum Of Law In
Support Of Defendant Lindsey's Motion To Dismiss Or For Summary
Judgment, filed August 4, 1986 (Lindsey's Law), at 1), most of
plaintiff's complaints against defendant Lindaey "are made without
any accompanying factual detail." (ibid).
Plaintiff addresses the procedural aspects of factual detail
at greater depth in his (Second) Motion For Judicial Notice, filed
August, 1986). Only two points will be noted here:
A) As "on many occasions" (Lindsey's Law at 2), again attacks
plaintiff's pleadings as "unfocused and confusing" (Lindsey's Law
at 2). Counsel laments the "convoluted and lengthy development of
this matter" (ibid., "Introduction," at 1.)
(1) Plaintiff proffers (see Thomas Declaration, filed
August 27, 1986 (Tom-Dec), at ) that the documents attached to
his pleadings are accurate reproductions of authentic records.
(2) Counsel has been given fair warning that these
documents are part of the record, and many references have been
made to those documents during the course of the pleadings.
(3) Counsel has uttered nary an objection to the validity or
evidentary sufficiency of those documents.
(4) Plaintiff admits his inartfulness, and
that...except for his lack of appropriate education (see Complaint
para. 17)...his pleadings might have been less "voluminous," and
even less "unfocused and confusing."
(5) But, if focus and clarity are aims of the American
jurisprudential process, plaintiff would contend that counsel's
task should have been to expose the fallacies or falsities of
plaintiff's pleadings, rather than to harp on his professional
(6) Had counse challenged any of plaintiff's
submissions as they were raised during the course of the pleadings,
it is likely that the "development of this matter' would not have
been nearly so "lengthy" or "convoluted," the interests of justice
would have been better served, the principled process of the
judiciary would have ben more wisely utilized, and counsel's
notion... "plaintiff's complaint is made without accompanying
factual detail"...would have appeared less fanciful.
(7) THEREFORE, plaintiff humbly submits, that it is not
the inartfulness of his pleadings, but rather the artfulness of
counsels' which best explains --if not the obfuscation of fact, the
prostitution of principle, the disgrace of the profession, and the
failing of human judicial systems here, abroad, and historically--
then, at least, the "convoluted and lengthy development of this
B) While the mind of the Court is on judicial ethics,
efficiency, and authenticity, plaintiff would raise what may prove
to be a sore point.
"On one occasion a camera, taken from plaintiff upon his
arrest, was missing when plaintiff sought to claim his property.
The Park Service undertook an investigation and discovered tha a
Park Service employee had stolen the camera. That empolyee, who is
not named or even mentioned in this case by plaintiff, was charged
with , and convicted of, stealing that camera. Plaintiff was
provided with the various investigative reports of this incident
and is fully aware that defendant Lindsey had no involvement."
(Lindsey's Law, at 8, footnote 2, emphasis added.
(1) Notwithstanding counsel's optimistic representations,
David Hurley, that "unnamed Park Service employee," had the
charges against him dropped. (see Issues In Dispute (IID), filed
August 27, 1986, para ).
(2) Plaintiff is aware of involvement on the part of
defendant Lindsey, and one of the purported "investigative reports"
to which counsel refers (but does not include as an exhibit)
attests to defendant Lindsey's personal proximity to the events in
question on June 6, 1984. (see IID, para. 1).
(3) Plaintiff alleges that on June 4, 1984 he, and his
associates were assualted, had their NPS permitted property
destroyed, had signs destroyed, had literature seized and
destroyed, suffered arrest without probable cause, and the
intentional delay of presentment to the court, had evidentary film
destroyed, and had his expressive activities interfered with
hampered, and disrupted by agents of defendant Lindsey, and
according to Sargent Wilkins, defendnat Lindsey was on the
scene.(IID, attachment 1.)
(3) This is just one occasion where it can be shown
that defendant Lindsey was on the scene of similar incidents.
Plaintiff submits that his claim rests on the most
fundamental principles of legal theory and civilization.
"Without respect for the law there is chaos." (Judge
Noel Kramer, D.C. Superior Court, August 8, l986.)
According to this theory law exists, in the first instance, to
set humanity above the beasts.
[1 In fact, David Harley was not convicted, but the charges were nolle
prossed. (See Issues in Dispute, filed this date.)]
"I think we all realize that there is a breakdown of
civilization if people start taking the law into their own hands."
(President Ronald Wilson Reagan. See Plaintiff's Opposition to
Government's Motion to Dismiss President Reagan as Defendant, page
On June 4, l986 Judge Louis Oberdorfer issued an order
directing discovery in this matter, indicating two issues:
"1) Whether any of the named defendants conspired to
deprive plaintiff of his civil rights, in violation of federal law;
"2) Whether any of the defendants individually committed
unconstitutional excesses in their efforts to arrest plaintiff
pursuant to local statutes and DOI regulations." (June 4, 1986
Order at 2.)
Denying the federal defendants' Motion for Judgment on the
Administrative Record, filed March 20, 1986, the Court also noted
plaintiff's claim that:
On various occasions plaintiff had appeared before Judge
Oberdorfer as a direct and proximate result, plaintiff alleges, of
defendants' excesses in arresting him pursuant to local statutes
and DOI regulations.
On one occasion p|aintiff explained to the judge:
"the adoption of the park (36 CFR 50.19(e)(11)(12)) regulations
was ... an act in furtherance of a conspiracy to violate
plaintiff's civil rights." (Ibid. at 3.)
"I have a belief, and by the most sacred
this country, I am entitled to hold my (belief), and, by the
fundamental laws of this country, I am entitled to express my
belief.... My burden seems to be that I hold an unpopular belief,
and I insist on expressing it. I am
[2 Plaintiff notes that the Docket Sheet in this matter does not
list "Opposition to Government's Motion to Dismiss President Reagan
as a Defendant," filed February 15, 1985, although it does list
Docket #21, the Government's Reply to that Motion. A copy of that
Motion is attached hereto because (a) the legal theory contained
therein is timely and (b) the Record is incomplete without it.
(Plaintiff has added it to his records as Docket No. 20-1/2.)]
viewed as a blight on society as a direct result of the manner of
my expression. But, being penniless in a society which
traditionally demands money for expression, there is no other
manner available to me for expressing my beliefs than through my
body, my voice, and crude signs in a prominent place.
"I am just doing my job. I am a critic, but criticism is
not a bad thing. Criticism identifies problems. Identifyivg a
problem is the first step toward solving it, when criticism is
"I pray this court will seriously consider whether I
(accurately) represent myself as a critic, as exemplified by my
life and works at 1600 Pennsylvania Avenue. Whether or not my
criticism is valid has never been at issue before this, or any
other, court.... (S)hould this court sentence me to be imprisoned
without ever having addressed the issue of my criticism(, I fear we
shall have a sorry state of affairs)." (USA v. Thomas CR 83-186,
transcript December 21, 1983, pp. 21-23.)
Judge Oberdorfer replied,
Plaintiff sought such a permit, was rebuffed or ignored, and
finally on November 21, 1984, filed this pro se action.
"Problem," "nuisance," "eyesore," and "blight" are only a few
of the less than faltering terms by which defendant Government'
agents have publicly described plaintiff, or his expressive conduct
in Lafayette Park ("Park") (see Issues In Dispute (IID) para ,
filed herewith ).
It is alleged that, because all defendants were aware
(including Lindsey, one would assume, since he had sworn an oath to
uphold the Constitution) that suppression of expression under color
of regulation was (past tense?) legally impermissible, they also
used those pejorative terms as euphemisims by which to identify the
"Thomas Demonstration" (see Issues in Dispute (IID), filed
herewith, para. , , ), with the alleged intent to mask
their true motive: hampering, disrupting, or terminating
plaintiff's rightful activities (see Amended Complaint, filed
October 16, 1985, para. , see also IID, para. , , ,).
Plaintiff's contention is that the gravamen of this
controversy is a conflict of ideology. Simply, plaintiff claims
to be a philosopher intent on questioning the sanity of
Government's nuclear weapons policies. He believes that, because
defendant Government is unable to reasonably or logically refute
his public comments, and views his inexpensive, effective method of
expressing those views as "the wave of the future," defendant
Government has employed its agents to subject plaintiff to abusive
application of various regulations in an effort to silence
plaintiff's bothersome truth-seeking. Defendant Lindsey was one of
those agents, and the Deputy Chief with supervisory responsibility
for all of the U.S. Park Police who abusively applied those
regulations in Lafayette Park and on the White House sidewalk.
Historically, plaintiff submits, it is not uncommon for social
critics to be seen as "problems" or "nuisances." From the heights
of a monolithic power structure those who question the values of
the monolithic power wielders have often, particularly in
occidental societies, been viewed as pesky gnats. For the most
part (e.g. witness Giordano Bruno, the Apostles, Socrates, to name
but a few) the mistreatment of philosophers had been accepted as
Then, it was thought, humanity entered an "Age of Reason." Lofty words were written:
"You can stand in front of that White House, and your
message can be seen all over the globe within hours, and your right
to do that is guaranteed.... I a} sens)tive, perhaps more
sensitive than eost, to the fact that if your country suppresses
the kind of protest that you are engaged hn, wd would be
jeopardizing the liberty of all of ts." (Ibid., pp. 28-29.)
"Because your case poses some difficult constitutional
questions, the answers to which are not free from doubt, service
of your sentence will be stayed until the time for appeal has
expired.... It is a condition of a bond pending appeal that you
will seek ... to apply for a permit and, if necessary, seek,
judicial review...." (Ibid., December 22, l983 Order, p. 4.)
"When a government assumes a position in which, as Ronald 
Wilson  Reagan  said on June 6, 1982, the 'end of
mankind...or at least the end of civilization as we know it' is
viewed as a viable option to insure that Government's continued
existence, the duty of a reasonable people is to alter that form
of government or, failing that, to end one's individual continued
submission or contribution to that government, a duty shich can be
seen a neither light nor transient.
"Plaintiff has suffered, while the evils were sufferable, a
long train of abuses and usurpations with invariably the same
object-- the negation of individual freedom secured by the Bill of
Rights -- under color of mindless bureaucratic regulation,
[selective police-state enforcement,] and a clear design to stifle
individual freedom and personal excellence." (See Complaint para.
19-21; see also Declaration of Independence of the United States of
America, July 4 (more or less), 1776.)
"When in the course of human events it becomes necessary
for one people to dissolve the political bonds which have connected
them with others, and to assume among the powers of the earth the
separate and equal station to which the laws of Nature and of
Nature's God entitle them, a decent respect for the opinions of
humankind requires that they should declare the causes which impel
them to this dissolution.
"We hold these truths to be self-evident: That all (humanity)
are created equal, that they are endowed by their Creator with
certain inalienable rights, that among them are life, liberty, and
the pursuit of happiness. -- That to secure these rights,
governments are instituted among (humanity) deriving their just
powers from the consent of the governed. -- That whenever any form
of government becomes destructive to these ends it is the right of
the people to alter or abolish it, and to institute new government,
laying its foundations on such principles and organizing its powers
so as to constructively and safely employ technology in the manner
most likely to beneficially effect the the Life, Liberty and
Happiness of Humanity. -- Prudence indeed, will dictate that a
government long established should not be changed for light or
transient reasons." (Declaration of Independence of the United
States of America, July 4 (more or less), 1776; see also Complaint
A. SUFFICIENCY OF SERVICE
Rule 4(j) Fed. R. Civ. P. provides that a complaint should
be served upon a defendant within 120 days, and if a plaintiff
"cannot show good cause why such service was not made within that
period the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative..."
Service in this matter was made, pursuant to Rule 4(B)(i), by
the United States Marshal. Plaintiff, unfamiliar with judicial
procedure, and in good faith, believed that the U.S. Marshal would
effect process correctly, and had done so.
On more than one occasion, as justification for an enlargement
of time, the U.S. Attorney has made the claim that the Justice
Department was "processing the representation requests ... for all
federal defendants" (e.g. Memo in Support of Motion for Enlargement
of Time, filed January 29, 1985, at 1). Again, we must proceed on
the presumption that the U.S. Attorney's Office would operate in
good faith. Since the U.S. Attorney's Office has been representing
defendant Lindsey, and has made no challenge to Service of Process
with respect to him until this late date, plaintiff assumed that
there were no problems in respect to service.
For the Court to dismiss this matter without prejudice as to
defendant Lindsey will only unnecessarily delay this litigation.
Plaintiff would humbly suggest that if the Court thinks it
necessary for Defendant Lindsey to be provided with a copy of the
Complaint, perhaps the most expeditious, economical and just course
to follow at this time would be for the Court to direct the U.S.
Marshal's Service to effect Service, as should have been done in
the first place.
B. DEFENDANT'S CULPABILITY UNDER
COMMON LAW TORT
Counsel is correct in stating that "plaintiff's allegations
focus on Lindsey's supervisory responsibility over officers who
did arrest (plaintiff)," (Lindsey's Law at 6); however, various
precedents indicate that plaintiff's allegations are certainly
sufficient to state a claim.
In the first place plaintiff has repeatedly (e.g. Amended
Complaint, October, 1985, para. 34; ______________________, p.
_____) asserted jurisdiction of this Court over the individual
defendants by virtue of the doctrines articulated in
Alvarez v. Wilson, 412 F. Supp 137:
"For purposes of (42 USC 1985(3)), a defendant is personally
involved in the acts of his subordinates if he had knowledge of
conduct, and consented to it; he need not have taken part."
and Glasson v. Louisville, 518 F2d 906, 1000 (1975), US App
Further, while counsel admits it is sufficient cause "when
agents carry out an official government policy" (Lindsey's Law, ftn
1 at 6), he is in error to state that plaintiff "does not
specifically allege that Lindsey was carrying out an official
government policy." (ibid).
"Defendants viewed plaintiff's creative communication as
the 'wave of the future' (see. Parr, X Document, p. 46-49). To
quash that wave defendants first tried simple harassment,
intimidation and arrests. When their initial attempts to drive
plaintiff out of the Park failed, some defendants realized that it
would become necessary to subvert the fundamental principles of the
Constitution -- and international law -- at least as relative to
plaintiff's rights to be in a public park, display signs, and
exercise other forms of nonviolent communication.
"On January 13, 1983 defendant Watt wrote a memo to Moody
Tidwell codifying a DOI/NPS administrative policy which has, in
practice, guided those agencies to this day...." (Amended
Complaint, para. 10 and 11; see also 12-22).
Plaintiff has alleged unconstitutional defects in relation to
several arrests with which defendant Lindsey was involved. There
is documentary support already in the record for at least one of
these allegations (see Wardlaw Affidavit, X Document, p. 99-100;
see also IID, para. ).
Counsel also assumes the position that "(A) warning --
followed by an arrest and conviction is simply not an actionable
event" (Lindsey's Law at 7). Plaintiff agrees that would usually
be the case, but observes clearly unusual circumstances involved
Plaintiff alleges that the "warning" was actually a threat
intended to intimidate him into abandoning his lawfully protected
behavior, and, when plaintiff refused to be intimidated, defendants
fulfilled their threat. Plaintiff further alleges that defendant
Lindsey went on to illustrate an allegedly profound disrespect for
due process and human dignity by giving obstructive testimony to
convince a court that probable cause existed for the arrest, when
the defendant knew, in fact, none did exist. (See Complaint para.
As the photographs on Complaint pages 50 and 88 illustrate,
there was no need to "disassemble" plaintiff's NPS permitted Mobile
Communications Unit to "transport them away from the White House."
(Lindsey's Law at 7.) Photos in the Administrative Record of the
confiscation of the same mobile speaker's platform on May 9, 1985,
show clearly that it was easily transportable intact. (See
C. PLAINTIFF STATES A CLASSIC CONSTITUTIONAL
"Where police officers ... acting pursuant to general notice
given at (a) meeting at which police chief was present, destroyed
(a) protest sign ... police officers were liable for violation of
protester's right to free expression and police officers and police
chief were liable under civil rights statute prohibiting
conspiracies to deny equal protection."
The first object of inquiry is whether the plaintiff has
asserted a valid right.
Plaintiff contends that whether he is a "problem," a
"philosopher," or a "protester," (Lindsey's Law at 2) is a matter
of fact to be determined at trial. Regardless of how plaintiff
might be described, his expressive conduct was protected under the
First Amendment, unless a threat to some "substantial government
interest." As far as "being in the park on a continuous basis,"
that right accrued to plaintiff under the Ninth Amendment. The
factual accuracy of these allegations is borne out by historical
occurrences of the arrests of plaintiff, Stacey Abney, and the
Quaker Vigilers (to name but a few), and the fact that those
arrests did not result in sustained convictions prior to the
enactment of the scheme attributed to defendants in this action.
"If an expressor has a constitutional right (to make certain
expressions), it cannot be denied that he may make subsequent
expressions for the same purpose. If his right exists
plaintiff does not lose his right by exercising it."
(Near v. Minnesota 283 US 720).
This brings us to the second inquiry; if one has a
right and that right has been violated, do the laws of the country
afford him a remedy?
"The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of
government is to afford that protection. (The) Government of the
United States has been emphatically termed a government of laws,
and not of men. It will certainly cease to deserve this high
appellation if the laws furnish no remedy for the violation of a
vested legal right....
"Is the act of delivering or withholding a (right) to be
considered a mere political act, belonging to the executive
department alone, for the performance of which entire confidence is
placed by our constitution in the supreme executive, and for any
misconduct respecting which, the injured individual has no remedy?
"That there may be such cases is not to be questioned, but
that every act of duty to be performed in any of the great
departments of government constitutes such a case is not to be
"(W)hen the legislature proceeds to impose on (an) officer
other duties; when he is directed peremptorily to perform (or to
refrain from performing) certain acts when the rights of
individuals are dependent on the performance of those acts; he
is so far the officer of the law; is amenable to the laws for his
conduct; and cannot of his discretion sport away the vested rights
"(W)here a specific duty is assigned by law, and individual
rights depend upon the performance of that duty; it seems ...
clear, that the individual who considers himself injured, has a
right to resort to the laws of (the) country for a remedy...."
(Gunther Constitutional Law, University Casebook Series, Tenth
Edition, pages 4 and 5, citing Marbury v. Madison 1 Cranch 137, 2
L. Ed. 60 (1803)).
Respectfully submitted this _____ day
of _____________, 1986.
William Thomas, Plaintiff Pro Se
1440 N Street NW, #410
Washington, DC 20005
Case Listing --- Proposition One ---- Peace Park