THOMAS v. REAGAN

USDC Cr. No. 84-3552

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.")

71. 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. 146(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, 144.) 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 1 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. l57, 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. 168, 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.

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