THOMAS v. REAGAN

USDC Cr. No. 84-3552

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al    
     Plaintiff Pro Se    
                         
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     
     Defendants

PLAINTIFFS' RESPONSE TO THE MAGISTRATE'S
RECOMMENDATION ON THE MOTION OF DEFENDANT CANFIELD FOR
SUMMARY JUDGMENT

Plaintiffs take issue with both the factual accuracy and the logic of the Magistrate's Recommendation as to Michael Canfield (Magistrate's Canfield Memo).

A. Magistrate Burnett wrote:

"The Magistrate heard oral argument (on defendants' Motions for Summary Judgment) on November 15, 1986....[1] The Magistrate has since carefully considered defendant's motion for summary judgment..." (Magistrate's Canfield Memo, page 3).

"(T)he gravemen (sic) 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, [Fifth, Ninth] 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." (Ibid. [parentheses added].)

Lest we forget (see Amended Complaint, para 1, see also, Restatement of Claim, filed August 21, 1986, para. 4 - 6), the actual gravamen of this controversy is plaintiffs':

"allegation that official policy is responsible for a deprivation of rights protected by the Constitution....

[1 Actually the hearing was held on November 14, 1986 (Docket Number 292).]

(G)overnments, like every other Section 1983 `person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. Kress & Co, 398 U. 144, 167-168 (1970): `Congress included customs and usage (in Section 1983) because of the persistent and widespread discriminatory practices of ... officials.... Although notauthorized by written law, such practices of ... officials could well be so permanent and well settled as to constitute a "custom or usage" with the force of law.'" (Monell v. New York City Dept. of Social Services, 430 U.S. 690, 691.)

B. In the Magistrate's view:

"...there are no genuine issues of Material Fact in dispute which would warrant a trial." (Ibid., page 2.)

For the Court's convenience plaintiffs recite here several bits of undisputed documented evidence from which, they believe, reasonable inferences may be drawn:

l. At least as early as March 9, 1983, defendant Canfield admits, he had been informed by an unidentified agent of the Secret Service:

"that it was their intent to have (Thomas) move his structures from the White House sidewalk." (Deposition of Michael Canfield, July 10, 1986, Docket Number ___.)

2. RICHARD ROBBINS: "(On March 11, 1983) I had accompanied the United States Park Police to the White House sidewalk to ask the individuals who had those large ... signs on the White House sidewalk to remove them, and we were there to prepare for an arrest situation should they fail to comply with that request." (Tr. Ex. 71, Robbins testimony December 13, 1983, ERA v. Watt, at 51.)

3. CHRISTOPHER MERILLAT: "(On March 11, 1983) I was in concert with Captain Canfield of the Second District of the Metropolitian Police Department at which time Mr. Canfield was trying to get the General Counsel from the District of Columbia to authorize him to remove the structure to abate the nuisance.... It was approximately one hour, maybe one hour and fifteen minutes before Mr. Canfield received approval from General Counsel to have the structures removed, and to abate the nuisance." (Tr. Ex. 66, testimony of Lt. Merillat, May 19, 1983, USA v. Thomas, CR 83-056, see also Plaintiff's Canfield Opposition Memo, page 4, para. 12.)

4. Prior to this litigation defendant Canfield claimed:

"(On March 11, 1983) I actually was in support of the United States Park Police. It was their territory." (Grand Jury testimony of Canfield, April 8, 1983, page 4.)

5. (By Lt. Merillat) "....I directed (Thomas) that Captain Canfield would be discussing something with him, reference to abating a nuisance.... At that time, Captain Canfield opened the curtain himself, directing Mr. Thomas to abate the nuisance or he would be subject to arrest." (Tr. EX 68, USA v. Thomas, Cr 83-056, May 19, 1983 testimony of Merillat, transcript at 51.)

6. "On March 11, 1983, officers of the U.S. Park Police loaded a sign onto a National Park Service truck. I begged various officers, particularly Lt. Merillat, not to confiscate the sign which was used by my friend, Thomas, and me jointly in the course of our demonstration activities." (Tr. Ex. 76(a), Affidavit of Concepcion Picciotto, filed January 17, 1986; see also Tr. Ex. 76(b), testimony of Merillat, CR 83-056, May 19, 1983, at page 73.)

XXX. Beginning from the valid premise that "(a) `joint venture' can be either lawful or unlawful" (Magistrate's Canfield Memo at 10 footnote 9/), the Magistrate apparently goes on to ignore the undisputed fact that, on March 11, 1983, no regulation existed which provided that signs on the White House sidewalk should be limited to "hand-held." (Compare, Tr. Ex. 75, see also Plaintiff's Canfield Opposition Memo, page 4, para. 11.)

1. Plaintiff agrees that it is lawful for defendant Canfield to enforce regulations of the District of Columbia.

Just the same, civil conspiracy is:

"to participate in an unlawful act, or a lawful act in an unlawful manner." (See, e.g. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1012.)

2. The Secret Service kept Interior Department and Park Police officials informed:

"From the very beginning, when those signs began to be left, unattended and attended ... we started to have a concern. We met with individuals and legal people from Interior and Park Police to work out some kind of arrangement.
( ...)
"I don't remember exactly when I first saw them out there, physically, but it became apparent that this was going to be a wave of the future." (Tr. Ex. 25{A} and 25{B}, Testimony of Jerry Parr, May 3, 1983, USDC CA 83-1243; ERA v. Watt,746 F2d 1518, Compare, Tr. Ex. 26 testimony of Patricia Bangert, November 30, 1983 [ibid].) [2]

[2 ART SPITZER (counsel for plaintiff ERA): "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?"

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 demonstrators, 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.)]

3. It is evident that defendants didn't like "signs" even before "signs" were defined as "structures."

"As you know, we are not in complete agreement concerning the presence of large, display board type signs on the White House sidewalk." (Tr. Ex. 57, Jerry Parr letter to Richard Robbins, January 10, 1983,See Plaintiff's Memorandum Of Points And Authorities In Opposition To The Motion Of Michael Canfield For Summary Judgment [Opposition to Canfield Summary Judgment], filed 9/22/86, para. 1.)

4. The Secretary of the Interior became involved:

"I would like 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 activity and require that they take place on the Ellipse." (Tr. Ex. 58, Memo from James G. Watt, January 13, 1983, See Opposition to Canfield Summary Judgment, para. 2.)

5. Defendants knew, or should have known plaintiffs right to display large signs was well-established:

"(T)he problem ... is that for ten years Court decisions have held that structures must be allowed at demonstrations." Defendant Bangert added that other Court decisions have ordered the government to permit demonstrations on a 24-hour basis ... " (Defendant Bangert quoted in the New York Times, September 7, 1984, See Federal Defendants Answer, filed July 31, 1986, para 73).

6. Defendants were undeterred by well-established rights:

"Ms. Concepcion and Mr. Dorrough were directed to remove the signs, which they did, Mr. Thomas was directed 'don't bring them back'." (Tr. Ex. 74, testimony of Lt. Merillat, USA v. Thomas, CR 83-056, May 19, 1983 at 75.)

7. CANFIELD: "I was summoned down there by the officials of the Uniformed Secret Service and by members of the United States Park Police to address a problem they were encountering with a protester... and the Park Police apparently with the permission of the Solicitor General of the United States had determined that this ... was not a placard or a sign.

"Their intentions were to inform him to abate the nuisance and move it off federal property. That's how I became involved in it." (Tr Ex. 65, Page 66 from defendant Canfield's deposition of July 10, 1986, quoting his Grand Jury testimony, April 8, 1983, pages 2 and 3; see Plaintiffs' Third Motion to Supplement Trial Exhibits, filed this date.) [3]

[3 Although defendant Canfield's testimony to the Grand Jury on April 8, 1983 is cited in Magistrate's Canfield Memo at 2 and 3, the Magistrate deleted the reference which explained how defendant Canfield "became involved in it." Additionally the Magistrate incorrectly identifies the quote as being from "the December 6, 1985 deposition of Captain Canfield."]

8. Without taking the events of March 11, 1983 into consideration U.S. District Court Judge William P. Bryant found:

"When Assistant Solicitor Robbins spoke to Secretary Watt about development of the regulations (on or about March 9, 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 plaintiff's 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 at pages 14 and 15, EMPHASIS ADDED, (parenthesis added).)

The doctrine of stare decisis demands that Judge Bryant should be considered a "reasonable fact-finder." Therefore this Court may perceive the Magistrate's Recommendation to be based on a demonstrably invalid postulate of "insubstantial evidence." [4]

[4 See, Plaintiffs' Trial Brief (Tr. Br.) and Trial Exhibits (Tr. Ex), Docket Number 249, Opposition By Plaintiffs To Defendant Canfield's Motion For Summary Judgment; with Points and Authorities, Docket Number 239; Opposition By Plaintiffs To Federal Defendant's Motion For Summary Judgment, Docket Number 241; all filed September 22, 1986; Plaintiffs' Genuine Issues In Dispute With Defendant Lindsey, with Memo In Support, Docket Number 208, filed August 27, 1986; Opposition to Federal Defendants' Motion for Protective Order, filed August 11, 1986.]

9. In addition to Judge Bryant's observations, plaintiffs have set forth and documented [5] a series of events from which a reasonable fact-finder might readily infer that this defendant conspired with others in a discernable effort to deprive plaintiffs (William Thomas, et. al.) of their rights.

[5 "(P)laintiff would direct the Court's attention to the fact that throughout these proceedings he has filed various documents as attachments to his pleadings. Plaintiff asks the Court to take Judicial Notice of those documents, and to direct counsel for defendants to note any objection they may have to those documents as evidentiarymaterial in this matter." (Plaintiff's Motion for Judicial Notice, filed August 27, 1986, at page 3, para. 3. UNOPPOSED BY FEDERAL DEFENDANTS, denied by the Magistrate)]

10. There is ample evidence presented in this case which no fact-finder has had an opportunity to consider. [6]

[6 e.g. Plaintiff has pointed out in previous filings that a photographer, by arrangement of the Park Police, was present at the scene of the March 11, 1983 incidents, and that he took well over ninety (90) photographs (see e.g. Tr. Ex. 56, and Original Complaint, filed November 21, 1984, pages 36-41). No fact-finder has considered the series of events depicted in those photographs. (see Reply to Deft. Canfield's Answer to the Amended Complaint, filed January 6, 1986, Docket Number 98).]

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