WILLIAM THOMAS, et al Plaintiff Pro Se versus Civil Action No. 84-3552 UNITED STATES, et al Defendants
Mr. William Thomas
1440 N Street, N.W.
Washington, D.C. 20005
(Plaintiff, pro se)
Ms. Candida Staempfli
Assistant Corporation Counsel
Washington, D.C. 20001
(Counsel for the Defendant
1/ The federal defendants have also filed motions seeking dismissal of plaintiff's claims. Those motions are the subject of two separate memorandum opinions.
plaintiff of his constitutional rights to dimonstrate for nuclear disarmament, in deprivation of his civil rights under 42 U.S.C. § 1983, and under the civil rights statute conspiratorial counterpart, 42 U.S.C. § 1985(3). As will be of material fact in sispute which would warrant a trial on these allegations made by the plaintiff against Captain Michael Canfield.
"I was summoned down there (to the White House sidewalk) by the officials of the uniformed Secret Service and by members of the United States Park Police in a joint venture to address a problem that they were encountering with a protestor who had used an obstacle or device which was quite large in size as part of his demonstration and the Park Police apparently with the permission of the Solicitor General of the United States had determined that the device which I think was about 10 feet long, 7 feet
tall and maybe five feet tall at the base, slightly triangular like a puptent but twice as big and was not a placard or a sign but that it was an obstacle in violation of the U.S. Code."
The gravemen of plaintiff's complaint and theory of liability as to Captain Canfield is that he acted individually and in conspiracy, as part of a "joint venture", with the federal defendants to violate his First, Fourth and Fourteenth Amendment rights in initiating criminal prosecution against him maliciously and without probable cause for the purpose of interfering with his demonstration activities on the White House sidewalk.
demonstration activities, the existence of probable cause, the justification as to the seizure of his signs, the Magistrate personally questioned each witness as to whether the contents of the signs influenced their actions and whether they ever took any action against him because of his messages and each credibly answered that the signs and their contents never played any part in their actions. After consideration of these matters, and for the reasons stated below, the Magistrate concludes that the motion of Captain Michael Canfield for summary judgment should be granted.
2/ Apparently, the "structure" refers to a large plywood and cardboard display-type sign, in an "A" shape with sufficient inner space for a person to occupy and hold items.
3/ In his opposition motion, plaintiff denies that he was sleeping in this structure and that he had ever used any "charcoal, propane or electric burner", or any "device whatsoever for either heating, cooking or any other living accomodation purpose." The Magistrate considers this factual dispute of no consequence in resolving this summary judgment. Further, if Captain Canfield acted in good faith in concluding that Mr. Thomas was "sleeping" from all appearances, the ultimate fact that he was not would be of no consequence.
arrest Mr. Thomas on March 8, 1983, but counseled him as to the violation so that he could correct his conduct and avoid arrest. Mr. Thomas has proffered no evidence to dispute this.
of the USPP, 4/ who informed him of their intention of removing the structure from the front sidewalk in front of the White House fence area. According to Captain Canfield, one of these USPP officers told him that plaintiff was "making it a daily practice to move the structure in front of the Old Executive Office Building at 10 p.m. until the next morning". On this basis, Captain Canfield checked early onthe morning of March 11th, but did not see the plaintiff on District of Columbia public space. Subsequently, USPP officers contacted Captain Canfield and advised him that plaintiff had moved his structure in front of the Old Executive Office Building. In his motion, Captain Canfield claims he returned to the Old Executive Office Building sidewalk area and found the plaintiff inside his structure. Captain Canfield again advised plaintiff that he must "abate the nuisance", or, alternatively, obtain a permit. 5/ Captain Canfield also alleges that he told plaintiff if he did not have a permit, Mr. Thomas would have to remove the structure by the end of the day. 6/ It is undisputed that during the course of this conversation, as the Captain was removing his own torso from the structure, Mr. Thomas produced a lighter with
4/ Such caution in proceeding to investigate plaintiff's presence on the White House sidewalk indicates that Captain Canfield approached the situation with care and provides a basis for an inverence that he did not have any motive or intent to commit any wrong in his actions towards Mr. Thomas.
5/ Mr. Thomas does not dispute the facts concerning Captain Canfield's initial conversation. It is significant that Captain Canfield again did not summarily arrest Mr. Thomas immediately on arriving at the scene.
6/ Even if, as plaintiff contends in his opposition motion at paragraph 10, that Captain Canfield advised Mr. Thomas that he had twenty (20) minutes to remove the structure, this does not alter the fact that Captain canfield acted properly in requiring plaintiff to "abate the nuisance".
which he set fire to the structure, resulting in substantial damage to the White House fence, and for which plaintiff was charged and convicted of felonious destruction of property in the Superior Court for the District of Columbia. 7/
7/ The plaintiff can not blame the law enforcement officials for his own impulsive, or contemplated, act in setting the structure on fire. While the plaintiff has represented that his conviction for this offense is on appeal, nonetheless a jury of 12 persons found him guilty of a felony offense in setting the structure on fire and destroying and damaging the property of another, the White House fence.
neither a factual finding of conspiratorial, nor of individual, liability against Mr. Canfield and, consequently, as a matter of law, such claims must be summarily dismissed. In his September 22, 1986 opposition motion, plaintiff claims that Captain Canfield conspired with the Solicitor General of the Department of the Interior, officers of the U.S. Park Service, and with agents of the United States Secret Service for the unlawful purpose of disrupting and impeding his peaceful efforts to protest his opposition to nuclear arms. While there is testimony by Captain Michael Canfield that he was "summoned down" to the White House area and engaged in a "joint venture" with the federal defendants, such terminology is clearly a characterization by him of his own involvement and is not controlling in the court's evaluation of whether he acted with any illegal or improper purpose. While Captain Canfield may have used such terminology, his deposition testimony reveals that he acted with the USPP to obtain factual inrformation and not for the purpose of depriving plaintiff of his civil rights. 8/ This contention is supported by the Captain's actual conduct in approaching Mr. Thomas. According to the declaration of Mr. Robert Dorrough, filed on September 22, 1986, on behalf of the plaintiff, he described the Captain's course of conduct as follows:
"On or about March 8, 1983 I saw a Metropositan Police captain coming out of the Northwest gate house of the White House who later became known to me as Captain Canfield. He introduced himself to William Thomas and told
8/ Mr. Thomas' arguments to the contrary is based on mere conjecture and speculation.
him that anyone found sleeping that night on Corporation Counsel property in front of the Old Executive Office Building would be arrested for vagrancy."
Because plaintiff has proffered no evidence,, either in the form of deposition or affidavit testimony or otherwise establishing the existence of a civil conspiracy, Captain Canfield's reference that he was involved in a "joint venture" with officers of the USPP and the Solicitor General's office is insubstantial evidence from which to infer the existence of such a conspiracy. Moreover, even assuming that the Captain was involved in such a "joint venture", the circumstances reflect that Captain Canfield acted lawfully, within the scope of his duties. 9/ This, the only evidence to support such conspiracy claims are a series of conversations and the exchange of information between Captain Canfield and officers of hte USPP pursuant to the legitimate posice business of information gathering and investigation. A successful §1985(3) claim must establish the existence of a civil conspiracy, i.e., an agreement between two or more people to participate in an unlawful act or to perform a lawful act in an unlawful manner. Halberstam v. Welch, 600 F. 2d 600, 620-621 (7th Cir. 1979). Although the existence of an express agreement need not be shown, the conspirators must be shown to know the existence "of a single plan, the essential nature and general scope of which [were] known to each person who is held responsible for its consequences." Hoffman-LaRoche, Inc. v. Greenberg, 447 F. 2d 872, 875 (7th Cir. 1971).
9/ A "joint venture" can be either lawful or unlawful; thus, the reference to "joint venture" without more carries no sinister implications.
assertions are not enough. The plaintiff has failed to proffer any actual facts by affidavit or otherwise to support his assertions that Captain Canfield participated in a conspiracy to violate his civil rights. Moreover, Captain Michael Canfield in his deposition, taken before the Magistrate, was extensively examined by Mr. Thomas and by the Magistrate for any indication of any animus or unlawful grounds for his personal actions in arresting the plaintiff without establishing even one action taken by him from which a reasonable factfinder could infer participation in a conspiracy to violate Mr. Thomas' constitutional or civil rights. Instead, in support of his conspiracy claims against the defendant, plaintiff has merely set forth conclusory assertions which express his belief that the defendant conspired with others to deprive him of his rights. In his opposition to defendant's motion, for example, plaintiff states:
"According to Thomas' theory a very high ranking official of the administrative branch of defendant Government, one who was supporting the allegedly genocidal philosophy of "Peace through Strength", made the decision to abuse the regulatory power of his office to foribly deprive plaintiff of his rights to maintain a constant presence, and display large signs and that presence was effectively communicating the rival philosophy of "Peace through Understanding."
This belief in no way sets forth any role of Captain Canfield in the conduct there referred to. Belief and speculation, without hard factual evidence, is not enough. Plaintiff should have, if he could, furnish specific facts of wrongful acts by Captain Canfield. Instead, plaintiff has merely set forth conslusory assertions which express his belief that defendant Michael Canfield conspired with others to deprive him of his rights.
10/ Mr. Thomas has failed to established throughout these proceedings that he could not have continued with his demonstration activities in the exercise of his First Amendment rights, provided he conformed his conduct to the regulations at hte time as to size of signs and avoidance of what reasonably could be construed as camping or living on either the White House sidewalk area or the D.C. public space sidewalk area. There is simply no evidence that law enforcement officials intended to preclude him from engaging in all demonstration activities.
"No person or persons shall set up, maintain, or establish any camp or any temporary place of abode, in any tent, wagon, van, automobile, truck, or house trailer, of any description, or in any combination, on public or
private property without the consent of the Mayor of the District of Columbia." 11/
While there exists a factual dispute as to whether Mr. Thomas was actually asleep in this structure, it may reasonably have seemed to Captain Canfield, under the circumstances, that Mr. Thomas appeared to be sleeping. Further, the items observed inside reasonably gave the impression of using the inner portion of the structure to sleep and eat. Given the D.C. regulation and the accompanying circumstances of the case, Captain Canfield acted reasonably in approaching Mr. Thomas, in questioning him as to his presence, and iniinquiring whether he had a permit for having the structure on D.C. public space. Moreover, the plaintiff claims that he would not have set fire to his structure but for the defendant's intimating presence and threatening arrest, and that any resulting damage caused to the White House fence was "unintentional, unforeseeable, and without malice." Specifically, plaintiff contends in his opposition that:
"defendant Canfield knew that the damage was not willful or malicious, but merely an accidential byproduct (sic) of Thomas' expressive reaction to a situation with no apparent resolution - which would never had occurred if defendants had not engineered and carried into effect a plot to remove a "nuisance" (which they knew to be protected under the First Amendment) "off of federal property" under color of regulation."
Contrary to plaintiff's contentions, Captain Canfield is not responsible for plaintiff's voluntary acts in setting the fire to his structure in the p resence
11/ Captain Canfield could have reasonably concluded that this "A" type structure on wheels was a "tent" or a "wagon" within the meaning of this specific regulation.
of the defendant. 12/ He alone is both factually and legally responsible for his impulsive behaviour. 13/ Under the totality of these circumstances, defendant Canfield acted reasonably in first approaching the plaintiff and subsequently arresting him for arson following his conduct in "torching" the structure. Thus, until the plaintiff committed a felony, the destruction of property by fire in the officer's presence, defendant's entire course of conduct towards the plaintiff is noteworthy in that he did not immediately arrest the plaintiff on March 8, March 9, or on March 11, 1983, but provided him with a series of continued warnings until he set the structure on fire onMarch 11, 1983. 14/
12/ In his declaration, Mr. Robert Dorrough, claims that the structure "burst into flames" after Captain Canfield advised plaintiff to remove his sign. Apparently, Mr. Dorrough did not actually witness Mr. Thomas produce the lighter with which he set fire to his structure with signs and words on it.
13/ If his conduct was contemplated and planned as expressive conduct, he is even more responsible for his own arrest and conviction. In the exercise of First Amendment rights, one can not justify the doing of acts which would constitute crimes.
14/ The events leading up to plaintiff's arrest on the morning of MArch 11, 1983, are best revealed by the declaration of Mr. Robert Dorrough, a key witness to be relied upon byt he plaintiff in addition to Concepcion Picciotto:
"On the morning of March 11, 1983 Concepcion Picciotto, William Thomas and I moved the signs from the Old Executive Office Building (OEOB) to their usual daily place in front of the White House in the approximate center of the fence. Thomas and I then left to go to the facilities at McDonald's. Returning to the so\igns I saw a large contingent of police from the Park Police, the Metropolitan Police and the uniformed Secret Service, watching as Concepcion moved the signs from the White House sidewalk across Jackson Place to the sidewalk in front of the OEOB. There were two attorneys in addition to the RAD (sic) Police and Richar Robins and Patricia Bangert of the National Capital Region Park Service Solictor's office of the Department of the Interior. Then Thomas returned and questioned the reasons for the signs being moved. Lt. Merillat said they were structures and if we tried to replace them on the White House side of Jackson Place we would be arrested for illegal structures."
Captain Canfield shortly arrived thereafter, after the structure were moved onto Corporation Counsel property. These same facts are supported by the deposition of Lieutenant Merrillat. Therein, Lieutenant Merillat testified that he told the plaintiffs, as they were moving the signs, "Don't bring them back". Based on this statement, an inference may be made that the Lieutenant warned plaintiff that he would be subject to arrest if he returned with his structure and signes on the White House sidewalk for violation of 36 C.F.R., section 50.19 (e)(8)(i).
Plaintiff also claims that USPP officers used trucks to unlawfully remove his signs on March 11, 1983 following hsi arrest by Captain Michael Canfield
15/ Captain Canfield has vehemently denied that he threatened Mr. Thomas with arrest for vagrancy as he had known for years that such an arrest was unconctitutional. Mr. Thomas' and Mr. Dorrough's reference to "vagrancy" is not enough to require a trial in that it is a dispute as to a non-material fact since Mr. Thomas, by his own admission, was never, in fact, arrested for vagrancy. Further, onthe record it is not clear if Mr. Dorrough's proffered testimony on this issue would only be hearsay.
even though two other demonstrators, Robert Dorrough and Concepcion Picciotto, remained after his arrest and claimed part ownership of the signs. Specifically, plaintiff alleges that the USPP officers lacked "probable cause" to remove the burned structure and remaining signs. These allegations are also meritless, especially as they apply toMichael Canfield. After Captain Canfield arrested plaintiff, the USPP acted properly in impounding plaintiff's property for inventory and safekeeping. These officers had no obligation to allow the other demonstrators possession of the signs and structure until true ownership of th property could be established. Consequently, the USPP officers acted lawfully, pursuant to plice regulations in removing plaintiff's unburned and other property from the area. Further, there is no proffered evidence that Captain Canfield directed or instructed them to do so.
16/ While intitially charged with "arson" for the burning of a building or dwelling, the subsequent change of that charge by an Assistant U.S. Attorney to destruction of property as a felony does not affect the validity of Captain Canfield's arrest of Mr. Thomas. While a prosecutor, as a trained lawyer, may have had reservations about whether the "structure" came within the meaning of hte arson provision, 22 D.C.C. § 401, and thus changed the charge to destruction of property, this did not make Captain Canfield's arrest one eithout probable cause and unlawful.
fact, See, White Motor Co., v. United States, 372 U.S. 253 (1953), the only matter which plaintiff has presented, and from which an intent of bad faith can not be inferred, are his conclusory and general assertions that the defendant lacked probable cause. This is not evidence. Where a summary judgment motion is made and properly supported,an adverse party may not rest upon the mere allegations or the assertions contained in his pleadings, but must respond by affidavit or otherwise by setting forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., __U.S. ___, 106 S. Ct. 2505(1986); Landow v. Georgetown Island West Corp., 454 A. 2d 310 (D.C. App. 1982). In the instant case, plaintiff has failed to proffer specific facts from which an inference may be made that Captain Canfield acted unlawfully, individually or in a conspiracy with the federal defendants, to deprive him of his constitutional and civil rights sufficient to warrant a trial on these allegations.
Arthur L Burnett, SR.
Date: December 14, 1986