THOMAS v. REAGAN
USDC Cr. No. 84-3552
TRIAL BRIEF CONTINUED
7l. On June 6, 1984, plaintiffs again were arrested under
color of "camping" regulation (Tr. Ex. 141), under supervision of
defendant Lindsey (Tr. Ex. 145), and subjected to malicious abuse
of process. (Tr. Ex. 146(d), Affidavit of David Manning filed
August 27, 1986; Tr. Ex. 146(e), 146(f), and 146(g), Declarations
of Robert Dorrough, Ellen Thomas, and William Thomas
(respectively), filed this date; Tr. Ex. l46(h), testimony Park
Police Property Manager A.C. Thomas.)
72. "On June 8, 1984 Mrs. Ellen Thomas wrote another complaint
and sent it to the Chief of the United States Park Police. In this
letter Mrs. Thomas complained of the abusive manner and excessive
force which were displayed by Officer David Haynes towards her and
her colleagues on June 8, 1984. The incidents are alleged to have
occurred during the arrest procedures."(Tr. Ex. 146(a).)
73. Plaintiffs claim they had photographic evidence to
support their allegation that they were assaulted by the arresting
officer. (Tr. Ex. 143, l44.) That evidence disappeared. (Tr. Ex.
146(a),(f),(g), 148.) Police issued false press reports, claiming
that plaintiffs assaulted the arresting officer. (Tr. Ex. 147.)
Plaintiffs' National Park Service-permitted speaker's platform was
destroyed by defendants' agents. (Tr. Ex. 146(f), 146(g),
Declarations of Ellen and William Thomas filed this date.)
74. On June 23, 1984, plaintiffs were again arrested for
"sleeping" (Tr. Ex. 150), subjected to malicious abuse of process
(Tr. Ex. 151), and had their signs unnecessarily destroyed and
confiscated (Tr. Ex. 152, 154). Again the Park Police issued false
statements to the press. (Tr. Ex. 153.)
75. "On June 23, 1984, I awoke and made my way to the park and the
signs only to discover that once again there had been a police raid
and the demonstrators had been removed from the park. The signs
were still there so I claimed responsibility for the signs and
attempted to take possession of them but was refused and told that
the signs were being confiscated as abandoned property. I said
again I would claim them. 'No,' I was told, they were being
confiscated as prisoner property. The signs were broken up by the
Park Police with sledgehammers." (Tr. Ex. 146(e), Declaration of
Robert Dorrough, filed this date.)
76. The Grand Jury refused to indict the assault charges, and
plaintiffs (and all other defendants) were acquitted of "camping"
charges. After the Government put on a five day case Federal
District Court Judge Joyce Hans Green found:
"Officer Haynes ... while he spoke with precision, and
exactitude, and painstaking care, had selective memory ... and
unable to remember even testimony that he clearly specifically had
given in the court hours earlier, failed to remember making, on
some occasions, earlier arrests of the defendants, contradicted
representations of the manner in which he inventoried the
property....
"Now, the Court's ruling today does not mean that ... it has
... become unnecessary ... to reach the several most significant
constitutional questions that someday,some way, with perhaps other
defendants, perhaps the same will be addressed.
"To continue with this trial would transform the trial from a
prosecution into a persecution, and accordingly the
respectivemotions for judgment of acquittal are as to each of the
defendants granted." (Tr. Ex. 142, U.S. District Court Judge Joyce
Hans Green, USA v. Thomas, USDC 84-255, September 25, 1984
transcript at 1025.)
77. Other Courts recognized the right plaintiffs now assert:
(p. 28-29) "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 am sensitive, perhaps
more sensitive than most, to the fact that if your country
suppresses the kind of protest that you are engaged in, it would be
jeopardizing the liberty of all of us." (Tr. Ex. 129, USA v.
Thomas CR 83-186, Judge Oberdorfer, transcript December 21, 1983.)
"We need not differ with the view of the Court of Appeals
that overnight sleeping in connection with a demonstration is
expressive conduct protected to some extent by the First
Amendment." (Tr. Ex. 155, Clark v. Community for Creative
Non-violence, # 82-1998, June 20, 1984 and Majority Opinion, p.
4-5; referenced in Dissent at pages l and 2.)
78. On July 19, 1984 Federal District Court Judge Louis
Oberdorfer sentenced Thomas for an alleged violation of the camping
regulation:
"ORDERED: That you shall ... apply promptly and in good faith
to the Secretary of Interior or his delegate for a permit or other
writing which prescribes the terms and conditions of your presence
in the park and in good faith seek judicial review of any decision
denying that permit or other writing." (Tr. Ex. 156, Order filed
July 19, 1984, USDC, USA v. Thomas, CR 83-243.)
79. Consistently plaintiffs attempted to comply with
regulations and communicate with defendants.
80. "It is my position that since 36 CFR 50.27(a) is not an
across the board ban on sleeping, there is no regulatory process by
which the human demands of sleeping can be denied me despite the
fact that I am maintaining a twenty-four hour vigil on park lands,
unless, of course, it can be illustrated that the act of my
sleeping results in impacts which the area is incapable of
sustaining. Since the Government has been unable to prove such
impacts in the three years I have been here I am sure we will be
able to determine at which point permissible (casual) sleep becomes
destructive, impermissible sleep, and so the first question
demanding agreement is, precisely what is 'casual sleep'?
"We leave it to your discretion to tell us just how many hours
per day we are legally permitted to sleep.
"We'll also need to know exactly what is meant by 'storage of
personal property'."
(Tr. Ex. 157, letter from Thomas to Department of Interior,
National Park Service, et al, July 21, 1984.) (See also
Tr. Ex. 158, 177(a)-(c), e.g.)
81. Beginning on August 21, 1984, the same date that
plaintiffs were forced by Park Police officials to move their signs
from the sidewalk of Pennsylvania Ave. and back into Lafayette
park, various agents of the Park Service and the Park Police began
compiling records concentrating on the number of signs. The number
of signs reported varied greatly. (Compare Tr. Ex. 160(a)-(o).)
82. During this same period the Ad Hoc White House Liaison
Committee on President's Park Signs was conducting investigations
of "public expressions" in "President's Park" (Tr. Ex. 161), while
defendant Lindsey admitted that he would like to "burn all these
(***) signs." (Tr. Ex. 146(d).)
83. Although defendants expressed a desire to restrict the
size and placement of signs, they were forced to admit that the law
prevented the implementation of their desires, and that plaintiffs
were cooperating with defendants' safety and aesthetics demands.
(Tr. Ex. 162.)
84. On October 10, 1984, Thomas was arrested and, at the
direction of defendants Lindsey and Bangert, charged with resisting
arrest. (Tr. Ex. 163(a).) That charge was without probable cause,
and subsequently dropped. However, it resulted in Thomas being
unnecessarily incarcerated. (Tr. Ex. 146(g).) Defendants also
took that opportunity to unnecessarily confiscate and damage
plaintiffs' speaker's platform and confiscate their literature.
(Tr. Ex. 163(b).)
85. On October 15, 1984, without probable cause, defendants'
agents again destroyed plaintiffs' signs. (Tr. Ex. 164; 146(f).)
86. On February 19-21, 1985, plaintiffs were again under
surveillance and subjected to harassment by agents of defendants.
(Tr. Ex. 165; see also Plaintiff's Affidavit in Support of Motion
for Preservation of Evidence filed February 22, 1985.) The
videotapes taken by Park Police on February 20-21, defendant
Bangert tells us, have disappeared. (See Federal Defendants'
Motion to Modify Magistrate's August 18, 1986 Order.)
87. Back in 1981 the Park Service had negotiated a settlement
agreement with the American Civil Liberties Union (ACLU) in Women
Strike for Peace v. Andrus, 472 F2d 1273, which:
"... produced revised regulations and an administrative policy
statement which clarified long-standing Park Service policy that
temporary structures could be erected at symbolic campsites
provided that the structures were not used for living
accommodations." (Tr. Ex. 8, 46 Fed. Reg. No. 219 at pg. 55959,
November 13, 1981, emphasis added.)
88. Additionally:
"... The Park Service has permitted ... (structures) ... to
shelter electrical and other sensitive equipment." (Tr. Ex. l68,
47 Fed. Reg. No. 53, pg. 11726, March 18, 1982.)
89. Nevertheless, on May 9, 1985, under color of "Additional
Permit Conditions and Restrictions, defendants Robbins and Bangert
again confiscated plaintiffs' NPS-permitted mobile speaker's
platform. (Tr. Ex. 166, 146(f).)
90. On June 8, 1985, agents of defendants again confiscated
without probable cause (Tr. Ex. 170) a banner (pictured at Tr. Ex.
146(f), attachment 9), carefully made to strictly comply with the
White House regulations, being used by plaintiffs in their
communicative activities outside the northeast gate of the White
House, where tourists exit. (This banner was held as "evidence"
for the peak months of the tourist season. Charges were finally
dropped and the banner released in the fall of 1985.)
91. "(On 6-8-85, at 0019 hrs.) Ellen Thomas was sitting upright
while William Thomas was lying on his side covered up. Adjacent to
Ellen Thomas, and in physical contact with her was a sign/banner
being held by a small piece of wood trim. The banner appeared to
be made of cloth. The sign banner was well within the restrictions
for items in that area. Car 31 was notified and responded, after
reviewing the applicable sections of 50 CFR concerning
demonstration activities in and around the White House area it was
determined that the Thomases were not in violation of any of the
sections. Based on this no action was taken." (Tr. Ex. 169, Case
Incident report, Sgt. Moyer, June 8, 1985, 0019 am.)(Compare Tr.
Ex. 170; see also Tr. Ex. 172, 146(f), 146(g).)
92. On November 18, 1985, Thomas was again arrested owing to
the color of the "camping" regulation. (Tr. Ex. 175.)
93. On March 5, 1986, defendants attempted to realize their
desires (e.g. Tr. Ex. 162) by coloring plaintiffs' activities with
yet another regulation (Tr. Ex. 176) justified in part by
defendants' exaggerations. (Tr. Ex. 149; see also Tr. Ex. 140.)
94. On various occasions, plaintiffs have attempted to obtain
definitions from DOI regarding "casual sleep" and "storage of
property." (See, e.g., Tr. Ex. 157, 158, 177(a)-(c).) To no
avail. After a long silence interspersed by new regulations,
continuing police harassment of plaintiffs and their demonstrating
associates even up to the present time (Tr. Ex. 178), and despite
this Court's Order (Tr. Ex. 156), defendant Robbins finally
responded that it would be inappropriate to provide any such
definitions "outside of (the) discovery process" in this case.
(Tr. Ex. 179(a); see also Tr. Ex. 179(b).)
95. On various occasions photographic evidence crucial to
plaintiffs has mysteriously disappeared. (See, supra. para. 55,
57, 73, 86.)
96. "In light of these facts, plaintiffs' claim that a memo
from Secretary Watt, and subsequent contacts between Assistant
Solicitor Robbins, a principle drafter of the regulations, and the
Secretary and the White House take on added signifigance. On
January 13, 1983, a memo from Secretary of Interior James G. Watt
requested a 'briefing on the regulations that allow demonstrations
and protesters in Lafayette Park and in front of the White House on
Pennsylvania Avenue. My intention is to prohibit such activities
and require that they take place on the Ellipse.
"When Assistant Solicitor Robbins spoke to Secretary Watt
about development of the regulations in March of 1983, the
Secretary told Mr. Robbins to `keep up the good work.` There was
also contact with the White House to inform White House counsel of
the status of the regulations. Additionally plaintiffs urge that
the key fact that both versions of the regulations just happened to
proscribe all of the plaintiffs then current activities on the
sidewalk cannot be regarded as mere co-incidence.
"In the circumstances it would appear that plaintiffs' claim
in this regard can in no wise be characterized as frivolous;
however in light of this court's disposition of this case, it need
not resolve this particular issue."
(Tr. Ex. 96, Memorandum Opinion, ERA v. Watt, CA 83-1243,
filed April 26, 1984 at pages 14 and 15.)
97. Various photographs from the Administrative Record bear
close scrutiny and testimony by various witnesses. (e.g. Tr. Ex.
180: Ad.Rec. I.J.55, I.J.56, I.J.88, I.J.89, I.J.90, I.J.91,
I.J.92, I.J.93, I.J.59, I.J.60, I.J.58, I.J.57, I.J.61, I.J.62,
(David Harley), I.J. 131, I.J.132, I.J.133, I.J.133, I.J.134, I.J.
135, I.J.36, I.J.37 (Concepcion's signs 'no property removed
here'). I.J.38; Tr. Ex. l46(f) photo attachments; more as
required.)
98. Other relevant photographs in plaintiffs' possession will
be submitted as needed at trial. (Tr. Ex. 181, not included.)
II. ISSUES IN DISPUTE
A. Whether 36 CFR 50.27(a) (as published in the Federal
Register on June 4, 1982), 36 CFR 50.19(e)(9)(10), and 36 CFR
50.19(e)(11)(12) violate the First, Ninth and Fourteenth Amendments
to the Constitution in that these regulations were selectively
enforced and/or unduly conceived and implemented against plaintiffs
as a post hoc bureaucratic remedy to Constitutionally-protected
critical activity which posed no substantial threat to Government
interest beyond questioning the sanity of Government's interests.
(See Complaint proposed Order for Preliminary Injunction, filed
November 21, 1984, at page 197(6).)
B. Whether, when the materially harmless actions of specific
individuals are guaranteed by the Constitution and recognized under
stare decisis as legal rights and privileges, and a group of
individuals sworn to uphold the Constitution enter into consort
(first under color of traditions, customs, rituals and regulations,
and later with the introduction of additional collaborators and the
concoction of administrative policy) to color the individuals'
socially beneficial, Constitutionally-protected rights as criminal
activity (enforced through force, violence, imprisonment,
confiscation, and destruction of property) under the guise of
"governmental interest," have the collaborators themselves
conspired in a redressable action? (See Plaintiffs' Opposition to
Federal Defendants' (First) Motion to Dismiss filed March 4, 1985
at p. 14.)
C. Whether defendants violated 42 USC 1983.
D. Whether defendants violated 42 USC 1985(3).
E. Whether defendants violated 42 USC 1986.
F. Whether 36 CFR 50.19(e)(11)(12) abridges the First
Amendment.
G. Whether 36 CFR 50.19(e)(11)(12) contravenes 5 USC 301.
(Amended Complaint Count 15.)
H. Whether 36 CFR 50.19(e)(11)(12) contravenes 5 USC 601.
(Amended Complaint Count 15.)
I. Whether 36 CFR 50.19(e)(11)(12) violates 36 CFR
50.19(b)(1). (Amended Complaint Count 14.)
J. Whether 36 CFR 50.19(e)(11)(12) violates 36 CFR
50.19()(1). (Amended Complaint Count 14.)
K. Whether 36 CFR 50.19(e)(11)(12) violates Executive Order
12291. (Amended Complaint Count 13.)
L. Whether defendants or their agents have destroyed or
damaged plaintiffs' signs, literature, or mobile speaker's
platform.
M. Whether defendants or their agents have wrongfully
confiscated plaintiffs' signs, literature, or mobile speaker's
platform.
N. Whether defendants have caused, engineered, allowed, or
condoned plaintiffs' arrest under color of regulation and without
probable cause.
O. Whether defendants have caused, engineered, allowed, or
condoned plaintiffs' incarceration under color of regulation and
without probable cause.
P. Whether defendants have caused, engineered, allowed, or
condoned plaintiffs' subjection to abuse of process.
Q. Whether defendants have caused, engineered, allowed, or
condoned situations in which plaintiffs have suffered physical
assault.
R. Whether defendants have caused, engineered, allowed, or
condoned the infliction of emotional distress upon plaintiffs.
S. Whether defendants or their agents have engaged in a
pattern of malicious prosecution against plaintiffs.
T. Whether defendants or their agents have made false
statements to the press which had the intent or effect of
portraying plaintiffs or their expressive activities in front of
the White House or in Lafayette Park in a defamatory, and damaging
light.
U. Whether defendants have destroyed, or allowed the
destruction of, evidence crucial to plaintiffs' defense in criminal
cases or to plaintiffs' presentation of this case.
V. Whether defendants or their agents have given false or
obstructive testimony under oath in various court cases for the
purpose of a) representing what they should have known to be the
impermissible suppression of expression (a restriction of the size
and placement of signs) as substantial government interests
(presidential security), or b) to cause plaintiffs' imprisonment
without probable cause, under color of regulation.
W. Whether defendants engineered or condoned a scheme with
the intent or effect of depriving individuals and small groups of
all methods available for attracting a "crowd or onlookers" as
provided in 36 CFR 50.19(a)(1), and essential to the function of
the principles of Individual Freedom of Belief and Freedom of
Expression as enshrined in the First Amendment.
X. Whether defendants engineered or condoned a scheme with
the intent or effect of depriving individuals and small groups of
the socially beneficial means to facilitate innovation and
productivity.
Y. Whether defendants engineered or condoned a scheme with the
intent or effect of causing the disruption of, and/or interference
with, plaintiffs' chosen profession.
Z. Whether defendants engineered or condoned a scheme with
the intent or effect of causing plaintiffs to suffer the
deprivation of association.
Respectfully submitted this _____ day
of _____________, 1986.
____________________________________
William Thomas, Plaintiff Pro Se
1440 N Street NW, #410
Washington, DC 20005
(202) 462-3542
Case Listing --- Proposition One ---- Peace Park