THOMAS v. REAGAN
USDC Cr. No. 84-3552
C. The Magistrate opines:
"There is simply no evidence that law enforcement officials
intended to preclude him from engaging in all demonstration
activities." (Magistrate's Canfield Memo, page 12, ftn. 10,
emphasis in the original.)
But the statutes provide:
"Every person who, under color of any ... regulation ...
subjects, or causes to be subjected,... anyperson within the
jurisdiction (of the United States) to the deprivation of any
rights, privileges, or immunities secured by the Constitution..."
Title 42 USC, Section 1983, and
"If two or more persons in any State or Territory conspire ...
for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws ... if one or
more persons engaged therein do or cause to be done any act in
furtherance of the object of such conspiracy, whereby another is
injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators." (Title 42 USC,
Section 1985(3), emphasis added.)
Notwithstanding Magistrate Burnett's "careful consideration"
of this matter, he does cite Halberstam v. Welch (incorrectly --
COMPARE, Magistrate's Canfield Memo, page 10), which says:
"[T]he original meaning of 'joint tort' was that of
vicarious liability for concerted action. All persons who acted in
concert to commit a trespass, in pursuance of a common design, were
held liable for the entire result.' W. Prosser, Law of Torts,
Section 46, at 291 (4th ed. 1971). (Prosser's) illustration
portrays a standard situation that involved this 'joint tort':
combined action by tortfeasors on the scene together - 'one might
have battered the plaintiff, while another imprisoned him, and a
third stole his silver buttons.' Each was responsible for the
others' actions." (Halberstam v. Welch, 705 F.2d 477.)
"A conspiracy need not be established by direct evidence ...
but may, and generally must, be proved by a number of indefinite
acts, conditions, and circumstances which vary according to the
purpose to be accomplished." (Davidson v. Simmons, 203 Neb. 804,
280 N.W. 645 [1979].)
Specifically the plaintiffs have alleged that defendants
intended:
"to punish, suppress or terminate political or moral
expressions critical of administration policies..." (see Statement
of Claim, filed, pursuant to Order of Judge Oberdorfer, April 22,
1986.)
Even more specifically, plaintiffs have claimed:
"the defendants agreed to concentrate on removing
plaintiff's signs to some location where they would attract less
attention, and be easier to ignore." (Amended Complaint, filed
October 19, 1985, paragraph 16), and
"The record ... demonstrates that (plaintiffs), in displaying
(their) placard(s) which contained a constitutionally protected
message, in a peaceful manner, from an appropriate place, (were)
engaged in activity protected by the First Amendment, and that the
destruction (or confiscation) of (their) signs by (Government
agents) deprived (them) of that right. (They) thus made out a
prima facie case for damages under section 1983." (Glasson v. City
of Louisville, 5l8 F2d 904, 908 (1977), USApp 6th Dist. (cert.
denied).)
"Where police officers ... acting pursuant to general notice
given at (a) meeting at which police chief was present, destroyed
(a) protest sign ... police officers and police chief were liable
under civil rights statute prohibiting conspiracies to deny equal
protection." (Ibid. at 906.)
D. The Magistrate offers the justification that:
"Mr. Thomas has failed to established (sic) throughout these
proceedings that he could not have continued with his demonstration
activities ... provided he conformed his conduct to the
regulations...." (Magistrate's Canfield Memo, page 12, at footnote
10),
However, Thomas can establish through testimony and evidence
that he has consistently been amenable to conforming his conduct to
the regulations, as he has been able to understand those
regulations. Apparently the Magistrate fails to consider the facts
that plaintiff has 1) repeatedly been arrested for purported
violations which resolve themselves in the interpretation of a word
("sleeping," or "structure"), and 2) when
plaintiffshave sought clarification of a specific definition,
defendants have failed to respond (e.g. Complaint, filed November
21, 1984, Attachment 30). Which prompted the filing of this suit.
It is apparent that plaintiffs' willingness to conform to the
regulations has previously been perceived and articulated within
the U.S. District Court, of this District, without any factual
determination having been made as to the nature of a pattern of
behavior which, plaintiffs allege, continues to the present time
[7]. Moreover:
"for whatever reasons, DEFENDANTS CONSISTENTLY CHOSE NOT TO MEET
PLAINTIFF FACE TO FACE TO WORK OUT THEIR POLITICAL, RELIGIOUS OR
SOCIAL DIFFERENCES, DESPITE PLAINTIFF'S REPEATED REQUESTS. Rather,
in their official capacities, defendants chose to direct the force
and violence of various police agencies against plaintiff and his
communications devices." (Amended Complaint, filed October 19,
1985, para. 19, see also para 9, EMPHASIS ADDED.)
[7 JUDGE: "Let me ask you this ... hasn't it been one of
those things where he (Thomas) gets arrested today for doing "x"
conduct, and then he goes back out and he does "x" minus "y"
conduct, right? And he gets arrested. And then he goes back out
and he does "x" minus "y" minus "z" conduct. In other words,
wherever you folks draw the line, he wants to stay on that line?"
U.S. ATTORNEY: "He plays games."
JUDGE: "Well, I don't know who is playing a game, really."
(Judge William Bryant (USA v. Thomas, USDC CR 84-358, July 5,
l983) ]
E. The Magistrate admits:
"(P)laintiff also averred that, defendant Canfield at no
time, ever suggested to Thomas that he should seek a Permit for any
purpose from any party." (Magistrate's Canfield Memo, page 5.)
Plaintiff believes that throughout his participation in this
litigation defendant Canfield has been lying in an attempt to
convince the Court that he was acting as an independent,
responsible law enforcement officer, rather than as a "mindless pawn" (see Complaint, para. 16), employing "totalitarian police
state tactics" (Ibid, para. 111), in a concerted effort to "stifle
individual freedom." (Ibid.)
CANFIELD: "`You will have to obey the law, and if you
are sleeping on this, on public space at night, you'll have to get
a permit.' And that's all I asked you to do, is comply with the
law. And then you rebutted by threatening to sue me.
"And then the next day I came down and showed you the specific
law and then you still -- was uncooperative."
THOMAS: "I object to this. I don`t believe that this happened
and --"
MAGISTRATE BURNETT: "Well, the the point is, you'll have a
chance to testify at the trial, and that's what a trial ultimately
is for... " (Deposition of Michael Canfield, Thomas v. USA, July
10, 1986, page 56.)
"It is, of course, academic that a motion for summary
judgment should never be granted if there remains in the case a
genuine issue of material fact. CREDIBILITY OF THE WITNESSES OR OF
THE PARTIES MAY WELL BE SUCH A GENUINE ISSUE." (United States v.
United Marketing Association, 291 F.2d 851 (1961), EMPHASIS ADDED.)
F. Although the Magistrate has recognized:
"Thomas averred that Captain Canfield returned the next day ...
and threatened to arrest him for vagrancy. According to plaintiff,
'defendant Canfield knew such a threat would have been
unconstitutional, but made the threat to intimidate Thomas.'"
(Magistrate's Canfield Memo at 5.);
and despite the fact Defendant Canfield said:
"That's been unconstitutional for quite some time, several
years." (Tr. Ex. 65-C, Deposition of Michael Canfield, July 10,
1986, page 44.);
the Magistrate just says:
"Plaintiff's allegations of harassment or threatened
arrest for vagrancy by Captain Canfield are simply not actionable."
(Magistrate's Canfield Memo, page 16.)
presumably because:
"Captain Canfield has vehemently denied that he threatened Mr.
Thomas with arrest for vagrancy...." (ibid, at ftn. 16, Compare,
Tr. Ex. 63, Declaration of Arthur Spitzer, July 15, 1986, and
Declarations of William Thomas, para. 46, amd Robert Dorrough,
para. 2, both filed September 22, 1986.)
But the Supreme Court has ruled:
"In view of the relationship of credibility to the
defense asserted ..., it can scarcely be gainsaid that the court in
so doing resolved a dominant factual issue, thus not only invading
the province of the jury but obviating the truth-testing process of
cross examination." (United States v. United Marketing
Association, 291 F.2d 854.)
G. The Magistrate supposes that:
"(t)he evidence in this case clearly establishes that all
communications between Captain Canfield and Lieutenant
Merillat and that Captain Canfield had with others were for proper
police business." (Magistrate's Canfield Memo, page 12.)
If, as Defendant Canfield claims, he had actually spent four
days "researching the police regulations and determining if
(Thomas) had, in fact, violated the law" (Tr. Ex. 77-B), one might
reasonably infer that defendant Canfield should have been prepared
to move a little faster than the "one hour, maybe one hour and
fifteen minutes," which Lt. Merillat claims it took to "receive
approval from the General Counsel... to abate the nuisance." [8].
[8 THOMAS: "(W)hat I am wondering now is whether or not anyone
explained to you what the nuisance was that you were trying to
abate. What nuisance were you down there (on March 11, 1983) to
abate?"
CANFIELD: "I was attempting -- the nuisance I was attempting
to abate was you sleeping in a structure on public space."
(Deposition of Michael Canfield, July 10, 1986, page 62.)
THOMAS: "Was I asleep at that time?"
CANFIELD: "What time?"
THOMAS: "At the time that you warned me not to use this sign
as a living accommodation.... Specifically when you were arresting
me, when you stuck your head in and allegedly saw me flicking the
Bic, was I sleeping?"
CANFIELD: "No, sir." (Ibid., page 74.)]
Even more suspect is defendant Canfield's own admission that
he made no reports (Tr. Ex. 77-A, Canfield July 10, 1986 deposition
at p. 60.). The record in this case contains absolutely no
evidence to substantiate this defendant's claim that he conducted
any "investigation." Further there is no documentation at all of
any communication, for "proper police business," or otherwise,
between Canfield and the other defendants. Nor is there indication
that any member of the Metropolitian Police Force ever generated or
received any communications with respect to the events of March 11,
1983.
Without so much as an arrest report another significant point
of credibility becomes the question: who was actually arresting
whom on March 11th. [9]
[9 Defendant Canfield's recollection with respect to the papering
of that case is a little foggy:
THOMAS: "Were you accompanied by any other officers when you spoke
with the U.S. Attorney?"
CANFIELD: "There may have been another officer down there from the
Metropolitian Police, I don't recall now."
THOMAS: "May there have been an officer there from the Park
Police?"
CANFIELD: "I don't recall representation from the Park Police
there. It wasn't their case, it was a District of Columbia case."
THOMAS: "Wasn't their case? So it would not have been likely then,
is that correct, for the Park Police officers to have been there?"
CANFIELD: "It would have been highly irregular and unusual."
(Tr. Ex. 79, Thomas v. USA, deposition of defendant Canfield,
July 10, 1986, at 107.)]
"It may well be that the weight of the evidence would be found
on a trial to be with defendant. But it may not withdraw these
witnesses from cross-examination, the best method yet devised for
testing trustworthiness of testimony. And their credibility and
the weight to be given to their opinions is to be determined, after
trial, in the regular manner." (Sartor v. Arkansas Natural Gas
Corp, 321 U.S. 620 [1944]).
H. Although the law demands that the facts at this point be
read most favorably to plaintiffs, the Magistrate purports:
"Plaintiff also claims that USPP officers used trucks to
unlawfully remove his signs on March 11, 1983 following his arrest
by Captain Michael Canfield even though two other demonstrators,
Robert Dorrough and Concepcion Picciotto, remained after his arrest
and claimed part ownership of the signs.... After Captain Canfield
arrested plaintiff, the USPP acted properly in impounding
plaintiff's property for inventory and safekeeping. These officers
had no obiligation to allow the other demonstrators possession of
the signs and structure until true ownership of the property could
be established ... Further, there is no proffered evidence that
Captain Canfield directed or instructed them to do so."
(Magistrate's Canfield Memo at 17.)
The facts are:
1. There is proffered evidence that Captain Canfield directed
or instructed the removal of the signs. [10]
2. Lt. Merillat did make out reports (Tr. Ex. 77(b), Lt.
Merillat report, 3-11-83), and
3. in his reports Lt. Merillat did acknowledge "true
ownership" of the signs (e.g. Tr. Ex. 77(b), Lt. Merillat report,
3-11-83).
[10 THOMAS: "Who impounded it?"
CANFIELD: "I did, or the Metropolitan Police Department."
THOMAS: "Metropolitan?"
CANFIELD: "Yes. I'm sure you're referring to the pictures on
page 50, 51, and 49 (of the Original Complaint). However, it
reflects that Park Police had a flatbed truck there and working --"
( ...)
THOMAS: "But if someone had come forward, the `structures'
wouldn't have been confiscated?"
( ... )
CANFIELD: "I don't think I would have-- logistically it's a
nightmare to take the structure anyplace, and if somebody had
claimed it and pushed it away, we would have probably let them do
it, because it certainly is an expense to the District government
to impound this type of property." (Michael Canfield deposition,
July 10, 1986, at p. 109-110.) ]
Case Listing --- Proposition One ---- Peace Park