THOMAS v. REAGAN

USDC Cr. No. 84-3552

TRIAL BRIEF CONTINUED

41. There is also evidence that, when the U.S. Attorney expressed reluctance to prosecute Thomas, it was the Park Police who ramrodded the charge through. (Tr. Ex. 78.) Characteris- tically defendant Canfield's recollection is failing, but he admits such a situation would have been "highly irregular and unusual." (Tr. Ex. 79.)

42. On March 13, 1983, Thomas was arrested for having an "object" (Tr. Ex. 80, 107), which defendants admit was a "cart." (Tr. Ex. 81, 82, 83, 84, 85, 86.) This arrest was no-papered.

43. On March 15, 1983, Thomas was assaulted and arrested on a charge of "disorderly conduct" by agents of defendant Canfield. (Tr. Ex. 87, 88.)

44. During this period police officials made various false representations to the press:

"Police are denying there is any new policy, but the street people and the clutter of protest signs have disappeared from in front of the White House.

"William Thomas, an anti-nuclear protester, has been swept away by the police three times since last Friday, and others such as Concepcion Picciotto, another anti-nuke regular who plastered her signs at 1600 Pennsylvania Avenue, have vanished from the scene.

"The U.S. Park Police deny there is any new crackdown, but there has been a near feud involving the police and courts and various Lafayette Park protesters for at least two years, and sources have told the Washington Times that cluttered sidewalks in front of the White House have been a topic of discussion lately between the Secret Service, the Park Police, and the U.S. Attorny's Office.

"'It's been an ongoing problem,' said Sandra Alley, spokeswoman for the National Park Service." (Tr. Ex. 89, Washington TIMES article by Gene Goltz, 3-16-83.)

45. Once again:

"On 3-18-83 at U.S. Magistrate's Court Mr. William Thomas was advised by U.S. Magistrate Arthur L. Burnett that he was restricted from demonstrating at the White House sidewalk except the hours of 10:00 AM to 8:00 PM. After 8:00 PM, he must not be within a block of the White House, if Mr. Thomas is observed in a one block area after 8:00 PM advise the District supervisor." (Tr. Ex. 90, report by Officer James 3-18-83.)

46. It is evident that defendants had Thomas in mind when they promulgated the White House sidewalk regulation. (Tr. Ex. 48, 54, 92, 93, 95, 97, 99, 102, 103, 104, 108, 112, 113(a)-(f), 114(a),(b).)

47. Q: (By Art Spitzer counsel for plaintiffs) "Would it be fair to say that these regulations (36 CFR 50.19(e)(9)(10) were prompted in part by the signs and parcels and packages and demonstration activities of William Thomas and Concepcion Picciotto, in particular the large, one might say, structure sign that Mr. Thomas used on the White House sidewalk during 1982 and 1983?"

A: (By Ms. Bangert) "The presence of a number of large signs certainly was cited as a problem." (Tr. Ex 97, Deposition of Patricia Bangert, ERA v. Watt, November 30, 1983 at 63.)

48. Q: (By Art Spitzer, counsel for plaintiffs) "When you say the large sign such as then was occurring on the White House sidewalk, are you referring to a large wooden object that might be described as a sign or a structure that was used by a person named William Thomas in his demonstration that had wheels on the bottom and a sloped front and triangular wooden sides?"

A: (By Mr. Robbins) "Art, I think that came later. What was occurring up there was a large four foot by eight foot sheets of plywood with writings on them, and there were several demon- strators, both individuals and collectively, using generally more than a dozen of those plywood signs, and sometimes substantially more than a dozen...." (Tr. Ex. 92, Deposition of Richard Robbins, ERA v. Watt, November 30, 1983 at 63.)

49. Defendants rushed their "hand-held sign" regulations into effect and, without probable cause, arrested Thomas, Concepcion, and Robert Dorrough on April 27, 1983, suspending the 30-day delay of effectiveness. (Tr. Ex. 96, 98, 99.)

50. "When I was notified about the new regulations concerning White House demonstrations, I phoned the Park Service Public Events office on April 27. I was transferred to a ranger, who told me that our demonstration would not be legal if the banners we used were held by more than one person. The ranger told me that under the new regulations, I was risking arrest by carrying the banners the way our group had always carried them.

"This information made me and my fellow vigilers very fearful, but we proceeded to go to the White House sidewalk on April 27 and resume our traditional vigil.

"Although we were not arrested, we observed the arrests of other White House demonstrators that afternoon.

"During our three years of vigils on the White House sidewalk, we have never observed the demonstrators who were arrested (Edward Saffron, Concepcion Picciotto, William Thomas, and Robert Dorrough) impeding pedestrian traffic or blocking any tourist's view of the White House." (Tr. Ex. 99, Affidavit of Mary Ann Beall, White House Vigil for the ERA CA 83-1243, executed April 28, 1983 (parentheses in the original).)

51. "On April 22, 1983, the Park Service published new 'interim regulations' regarding demonstrations and the placement of property on the White House sidewalk. 48 Fed. Reg. 17352. Although promulgated without prior public notice, or opportunity for public comment these interim regulations were effective immediately. On April 27, 1983 (Concepcion Picciotto, Robert Dorrough, and William Thomas) were arrested for violating the interim regulations. Two days later the instant suit was filed challenging the regulations on both procedural and constitutional grounds.

"On May 3,1983 an evidentiary hearing was held on the plaintiffs' first motion for a Temporary Restraining Order enjoining enforcement of the regulations. At the conclusion of this hearing the Court granted the motion on the ground that 'good cause' had not been shown for waiving the notice and comment requirement for informal rulemaking set forth in the Administrative Procedure Act, 5 USC 553. Subsequently, on May 17, the interim regulations were republished by the National Park Service as a proposed rulemaking with an additional comment period extending to May 31. 48 Fed. Reg 22248.... These final regulations were to become effective eighteen days later on July 4. . .

"A hearing was held on June 30th and on July 1st the Court issued a Memorandum and Order on the ground that 'good cause' had not been shown for shortening the 30 delay in effectiveness required by the Administrative Procedure Act 5 USC, 553." (Tr. Ex. 96, ERA v. Clark, USDC CA 83-1243, Memorandum and Order, J. Bryant, filed April 26, 1984.)

52. Many meetings were held and memoranda distributed among representatives of the Secret Service, the United States Park Police, the U.S. Attorney's, and the DOI Solicitor's Office, to discuss the "situation on the White House Sidewalk." (e.g. Tr. Ex. 25, 26, 106, 109.)

53. Defendants falsely represented through reports to the media that there was any new police policy concerning William Thomas and Concepcion Picciotto and their signs on the White House sidewalk. (Tr. Ex. 89, 113(f).)

54. Various defendants who participated in the meeting which produced the "hand-held sign" regulations also participated in an attempt to convince the U.S. District Court that an incident which did not occur supported their contention that signs were a threat to the President. (Tr. Ex. 92, 94, 95, 101, 102.)

"Recently the U.S. Secret Service and the U.S. Park Police have alleged that protest signs leaning against the White House fence pose a threat to the life of the President in that they might be used to scale the fence.

"In order to clearly demonstrate that 1) any determined individual with a desire to climb the fence could do so without the aid of a protest sign, and 2) that the Secret Service's Executive Protective Division is well prepared to deal with any individual who does climb the fence, I climbed to the top of the fence, with no intention whatsoever to set foot on the White House grounds, before jumping back to the sidewalk." (Tr. Ex. 103, Letter from Thomas from SS files, May 5, 1983.)

55. At the same time, defendants also referred to photographs taken of the White House sidewalk in 1981 while representing the false impression that this was the "situation" as it existed in 1982. (Tr. Ex. 10.) Defendant Bangert currently claims photographs cannot be found from the relevant period in 1982. (See Federal Defendants' Motion to Modify Magistrate's August 18, 1986 Order.)

56. "Defendants' (Lindsey and Parr) testimony that a large sign had been used by an individual to scale the White House fence fell apart at the trial. There was no evidence that any sign belonging to the plaintiffs or anybody else had ever been used to scale the fence." (Tr. Ex. 96, Judge Bryant's Memorandum Opinion, ERA v. Clark, CA 83-1243, April 26, 1984, at p. 22.)

57. When on May 5, 1983, Thomas took harmless, symbolic exception to defendants' false or perjurious testimony, he was arrested and subjected to malicious abuse of process. (Tr. Ex. 103, 104.) The Secret Service videotaped the incident. When the videotape was subpoenaed for trial, the evidence had disappeared. (Tr. Ex. 146(g), para. 82-84.)

58. The Washington Times was the only local newspaper that printed prejudicial and defamatory articles and editorials about plaintiffs and their activities, e.g.:

"We appreciate and share your concern over word that the bums are back, littering the White House gate with their hand lettered messages. The day before yesterday we reported that the clutter of protest signs defacing Pennsylvania Avenue sidewalk had been cleared away by the United States Park Police.

"But the feds can't keep the fence permanently clear of the wallboard placards. About all they can do is hustle off to jail the two day in day out regular sign owners - a woman named Concepcion Picciotto, and a man named William Thomas - for violating the rule against structures in front of the White House....

"By Tuesday the signs were back. Unlike the mobile shanties, they don't violate regulations, and won't until the Interior Department issues the new regulations we've urged banning all but hand-held signs. Even Chief Justice Burger's grant of a temproary stay yesterday of an Appeals Court decision that sleeping in Lafayette Park is a form of free speech doesn't alter the situation....

"A permanent stay is crucial to a civilized society tired of having its pride in America mugged by pitiable lunatics, and an Appeals Court too cross-eyed to tell the difference between genuine free speech and permissive indulgence and childish willfulness and the delusions of the insane." (Tr. Ex. 113(d), Washington Times Editorial, March 16, 1983).

"A series of editorials in the Washington Times in February and March urged the Department of Interior to amend the regulations to prevent the 'defacing of a premier national symbol with garish placards and incoherent slogans.' The series helped to facilitate a final decision to ban all but hand-held signs, Park Service spokesman George Berklacy said....

"Officials said that two protesters, William Thomas and Concepcion Picciotto, have been stationed day and night in front of the White House for the past year with as many as twenty-five wall board signs and placards leaning against the fence. Even though numerous complaints have been received concerning the unsightliness of Thomas' and Picciotto's campaign, authorities said there was little they could do under the old regulations....

"But the unrestricted use of the First Amendment right of free speech began to give way to security concerns when Thomas was picked up by Park Police for questioning at the time of (Norman) Mayer's siege. He also was arrested on March 11 for setting fire to several (sic) of his signs near the White House.

"Thomas, Picciotto, and others are free to say whatever they want, sources said, as long as their protestation symbols are not left leaning against the White House fence. There is no limitation on the size of signs they wish to carry."

(Tr. Ex. 113(f), Washington Times news article, written by Glenn Emery, April 25, 1983; see also Tr. Ex. 89.)

59. Defendants used the Washington TIMES false press reports (which they or their agents generated) as official justification for their "hand-held sign" regulation (Tr. Ex. 112, 114(b); see also Tr. Ex. 95, 108), while apparently ignoring more balanced press reports (e.g. Tr. Ex. 114(c).)

60. In the Administrative Record of 36 CFR 50.19(e)(9)(10) there are examples of the type of public comments which the Park Service relied on in its rule-making considerations.

"I am in concert with most of your plans for our country. You had a mess to clean up. But I would chase the pickets and signs from in front of the White House -- at least across the street to Lafayette Park. Since you have a lot of 'class,' see if you can't make Washington, D.C. a classy city."

(Tr. Ex. 115(b), letter to the President, signed "A Concerned American, G. T. Finch," dated November 30, 1982; see also Tr. Ex. 155(a).)

61. Defendants or their agents subjected Thomas and Concepcion to additional harassment with respect to "cart" and "sleeping." (Tr. Ex. 116(a),(b), 117, 118.)

62. Thomas continued in his attempts to conform his behavior to the ever-more-restrictive regulations (Tr. Ex. 120) while continuing to communicate effectively with a portable cardboard sign which he thought complied with the rules:

"Individuals or groups of 25 persons or less demonstrating under the small group permit exemption of 50.19(b)(1) shall not be permitted to erect temporary structures other than small lecterns or speaker's platforms. This provision is not intended to restrict the use of portable signs or banners." (36 CFR 50.19(e)(8)(v).) (Tr. Ex. 119.)

"No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth, having dimensions no greater than three feet in width, 20 feet in length, and 1/4" in thickness." (36 CFR 50.19(e)(9).) (Tr. Ex. 119.)

63. Defendants continued to use regulations as color to interfere with that effective communication (Tr. Ex. 108, 110, 111, 112, 121, 122), while remaining steadfast in their refusal to communicate with plaintiffs (Tr. Ex. 123, 124).

64. On September 24, 1983 and January 31, 1984 Thomas and Concepcion were again arrested for "sleeping" (Tr. Ex. 125, 131), and subjected to malicious abuse of process and prosecution. (Tr. Ex. 126.)

65. Sworn testimony by the arresting agent, Officer Haynes, indicates that he was following instructions (Tr. Ex. 128), and that those instructions came from defendant Lindsey (Tr. Ex. 127).

66. Once again during the spring of 1984 the "William Thomas Vigil" was again under surveillance by defendants' agents. (Tr. Ex. 133, 134(a)-(c), 135, 136.)

67. During the last week of May, 1984, Officer David Haynes threatened plaintiffs with arrest for harmlessly securing their signs. (Tr. Ex. 146(g); compare Tr. Ex. 140, 149(a),(b).)

68. On May 28, 1984 William and Ellen Thomas submitted a permit application to the National Park Service. (Tr. Ex. 137.) The following questions and answers appeared on that application:

"10. List all props. . .and other similar items."

"One mobile speaker's platform 30' x 8" x 4" made of plywood, for storage of electronic equipment, and literature."

"11. If boxes, crates, coffins or similar items will be used state whether they will be carried opened or closed, their proposed size the materials constructed from and their proposed contents and use."

"Stakes to anchor signs."

"12. Do you have any reason to believe any individual, group or organization might seek to disrupt the activity for which this application is submitted?"

"Either the Park Police, or the U.S. Attorney, judging from past experience, might seek to disrupt this activity."

69. On May 30, 1984 Phil Walsh, Rick Merryman, et. al., "okayed" a diagram of the proposed structure, attached to the application. (Tr. Ex. 138.)

70. During their expressive activities plaintiffs have been forced to accommodate both the demands of the various agencies involved here, as well as other unreasonable people who frequent the park. (See, e.g., Tr. Ex. 139; see also Plaintiffs' Motion to Strike the Administrative Record filed March 21, 1986 at "Federal Defendants' Complaint Against William Hale in Response to Plaintiffs' Complaint Against Federal Defendants.")

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